The Constitutions that Shaped Us: A Historical Anthology of Pre-1867 Canadian Constitutions 9780773597822

Citation preview

T h e C o n s t i t u t i o n s That S haped Us

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The Constitutions that Shaped Us A Historical Anthology of Pre-1867 Canadian Constitutions

Edited by

Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2015 First published in French as Ces constitutions qui nous ont façonnés : Anthologie historique des lois constitutionnelles antérieures à 1867 by Presses de l’Université Laval, 2014 isbn isbn isbn isbn

978-0-7735-4606-6 (cloth) 978-0-7735-4607-3 (paper) 978-0-7735-9782-2 (eP DF ) 978-0-7735-9783-9 (eP UB)

Legal deposit third quarter 2015 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Ces constitutions qui nous ont façonnés. English The constitutions that shaped us: a historical anthology of pre-1867 Canadian constitutions / edited by Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay. Translation of: Ces constitutions qui nous ont façonnés. Includes bibliographical references and index. Issued in print and electronic formats. isbn 978-0-7735-4606-6 (cloth). – i s bn 978-0-7735-4607-3(paper). – isbn 978-0-7735-9782-2 (eP DF ). – i s bn 978-0-7735-9783-9 (eP U B ) 1. Constitutional history – Canada.  I. Gagnon, Alain-G. (Alain-Gustave), 1954–, editor  II. Laforest, Guy, 1955–, editor  III. Tanguay, Yves, 1955–, editor  IV. Brouillet, Eugénie, 1973–, editor  V. Title. ke4199.c4713 2015    342.7102'9    c2015-903678-x kf4482.c4713 2015             c 2015-903679-8

This book was typeset by Interscript in 10.5/13 Baskerville.

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Contents

Acknowledgments vii Introduction 3

P art on e Canada under British Rules 1760–1900  25 Sir John George Bourinot Canada’s History Class  47 Thomas Chapais The History of Canada from Discovery to the Present Day  69 François-Xavier Garneau The History of French Canada since Discovery  103 Chanoine Lionel Groulx The Constitution of Canada  140 W.P.M. Kennedy Canada and Its Provinces  158 Adam Shortt and Arthur G. Doughty

P art t wo The Old Province of Quebec  181 Alfred Leroy Burt

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vi contents

French Canada and the Early Decades of British Rule, 1760–1791 191 Michel Brunet The Quebec Act: A Magnanimous Concession, or a Self-Interested Gesture? 205 Séraphin Marion Canadian Historical Controversies  221 Hilda Neatby The French Canadians, 1760–1791  236 Mason Wade Background for a New Approach to the 1791 Constitution  255 Pierre Tousignant A History of Canada  280 Arthur R.M. Lower The Union of the Canadas: A New Conquest?  299 Denis Vaugeois The Pattern of Union, 1840–1841  306 J.M.S. Careless Second Capitulation of the French Canadians, 1839–1842  320 Maurice Séguin Bibliography 335 Biographical Notes  337 Index 345

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Acknowledgments

The preparation and publication of this anthology have been made possible thanks to the support and assistance received from a number of partners, and also from some of our students. We would like to express our thanks to the Quebec government’s Secretariat for Canadian Intergovernmental Affairs (Secrétariat aux affaires intergouvernementales canadiennes) which provided a grant for this book project and for a symposium marking the 150th anniversary of the Quebec Conference at the Musée de la Civilisation in Quebec City from 16 to 18 October 2014. The anthology and symposium are part of the program of the Research Group on Plurinational Societies (Groupe de recherche sur les sociétés plurinationales, or G R SP), an interuniversity team directed by Alain-G. Gagnon with funding from the Québec Research Fund for Society and Culture (Fonds de recherche du Québec – Société et culture) for the years 2011–15. The team is starting a new cycle of work with funding from the Social Sciences and Research Council of Canada for the period from 2014 to 2017. The anthology and symposium are part of the program of the Interdisciplinary Research Centre on Diversity and Democracy (Centre de recherche interdisciplinaire sur la diversité et la démocratie, or C R I DA Q), also headed by Alain-G. Gagnon, with Eugénie Brouillet and Guy Laforest as members. The CRID AQ was awarded a major grant in 2014 following the competition to form strategic groups organized by the Québec Research Fund for Society and Culture (Regroupements stratégiques du Fonds de recherche du Québec sur la société et la culture) for the years 2014–20. The preparation of the anthology required a vast amount of work to identify and select relevant texts from the historiographical corpus. We would like to thank students Hubert Rioux and Jean-Charles

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viii acknowledgm e n t s

St-Louis, both graduate students in political science at Université du Québec à Montréal; and Rosalie Readman, a graduate student in political science at Université Laval, for their significant contribution to this task. We were also lucky enough to have professional support from Denis Dion, Jocelyne Naud, and the other members of their team at Presses de l’Université Laval. The editors of this volume wish to express their sincerest thanks and to acknowledge the permission granted to reprint the following essays within this collection: “The Old Province of Quebec” by Alfred LeRoy Burt (University of Minnesota Press); “French Canada and the Early Decades of British Rule, 1760–1791” by Michel Brunet (Canadian Historical Association); “The Quebec Act: A Magnanimous Concession, or a Self-Interested Gesture?” by Séraphin Marion (Éditions la Liberté); “Quebec: The Revolutionary Age, 1760–1791” by Hilda Neatby (McClelland & Stewart, a division of Penguin Random House Canada Limited, a Penguin Random House Company); “The French Canadians, 1760–1791” by Mason Wade (Macmillan Company of Canada); “Background for a New Approach to the 1791 Constitution” by Pierre Tousignant (Revue d’histoire de L’Amérique Française); “A History of Canada” by Arthur R. M. Lower (excerpted from  Colony to a Nation: A History of Canada  by Arthur R.M. Lower with maps by T.W. MacLean. Text copyright 1977 Arthur R.M. Lower. McClelland & Stewart, a division of Penguin Random House Canada Limited, a Penguin Random House Company); “The Union of the Canadas: A New Conquest?” by Denis Vaugeois (first published by Septentrion. Permission to reprint granted by Denis Vaugeois); “The Unions of Canadas: The Growth of Canadians Institutions 1841–1857” by J.M.S. Careless (Oxford University Press); and “Second Capitulation of the French Canadians 1839–1842” by Maurice Séguin (Guérin).

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Introduction Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay This book is part of a broader project to re-examine, from a serious, comparative and critical standpoint, the events and texts that led to the union of several British colonies in North America in the years 1864 to 1867. The main events are well known: the Charlottetown Conference in September 1864, the Quebec Conference in October of the same year, followed by another formal meeting in London in 1866, leading up to the passage by the British Parliament of the British North America Act of 1867 (in current legal terminology, the Constitution Act, 1867). The key players are also familiar: John A. Macdonald, George-Étienne Cartier, and George Brown heading a broad coalition in United Canada; Samuel Leonard Tilley and Charles Tupper, the leaders of the colonies of New Brunswick and Nova Scotia; opposition politicians in all the colonies; Oliver Mowat, who played an essential role drafting the provisions defining pro­ vincial powers during the Quebec Conference; D’Arcy McGee and Alexander Galt representing the powerful English-speaking community of Canada East (today’s Quebec); and many others. To mark the 150th anniversary of the Quebec Conference and shed more light on the emergence of the Canadian federation, a three-day colloquium took place from 16 to 18 October 2014, organized jointly by the Research Group on Plurinational Societies (Groupe de recherche sur les sociétés plurinationales, or G RS P ), based at Université du Québec à Montréal (U Q AM) and directed by Alain-G. Gagnon, the Faculty of Law at Université Laval, headed by Eugénie Brouillet, the main coordinator for the event, and the Québec government’s Secrétariat aux affaires intergouvernementales canadiennes (SA I C ) (under the responsibility of Minister Jean-Marc

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Fournier).1 The colloquium brought together legal experts, historians, political scientists and philosophers from all parts of Canada, working in both French and English. It is expected to lead to a second, follow-up meeting in 2017 to look analytically and critically at the evolution of the constitutional text of 1867, while establishing parallels with the evolution of societies and countries with similarities to Quebec and Canada. However, to deal intelligently, in depth, and over time with the events that marked the union of the British colonies, the birth of the Dominion of Canada (an expression coined by the leader of New Brunswick, Leonard Tilley), and the rebirth of political autonomy in a colony known successively as Quebec, Lower Canada, Canada East and, once again, Quebec in 1867, it is important to give readers access to a critical and pluralist anthology that reveals how a series of academics, mostly historians but including some jurists and political scientists, interpreted the pre-1867 Canadian constitutions: the Royal Proclamation of 1763, promulgated in the same year as the Treaty of Paris under which Canada was ceded to Great Britain; the Quebec Act of 1774; the Constitutional Act of 1791; and the Act of Union of 1840. The texts have been selected to ensure that the anthology deals only peripherally with the events leading up to the introduction of responsible government in 1848 and the vicissitudes of political life in the North American colonies which, combined with the fallout from the War of American Independence and the desire of the United Kingdom to streamline its policy of imperial control, can be seen as the causes of the reorganization of 1867. We will present, below, the reasons that guided our selection of texts, along with a few methodological and organizational comments. Before that, though, we would like to draw our readers’ attention to some more general political and academic considerations. The constitutional question undeniably occupied a central – some would say too central – position in the political life of Quebec and Canada in the twentieth century. After consolidating its political sovereignty, and in particular after gaining control over its foreign policy in the Statute of Westminster of 1931, Canada and its political leaders had to work hard and overcome a number of setbacks before achieving the political maturity needed to truly master the constitutional amendment mechanisms included in the 1982 reform instigated by Pierre Elliott Trudeau – rejected at the time by René Lévesque and, since then, by all Quebec government leaders. The

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constitution remained in the spotlight between 1982 and 1992, thanks to the complex negotiations surrounding the Meech Lake Agreement in 1987 and the Charlottetown Accord in 1992. Both agreements, however, finally lapsed because of an inability to meet the requirements of the amending formula and a failure to achieve popular support, in the case of Charlottetown, which was rejected in referendums of the Canadian and Quebec electorates in 1992. In the years following, gradually but systematically, it became almost taboo to mention the word constitution. Some people find the amending formula overly complicated, while others simply refuse to address the topic. Our current leaders display a range of attitudes. Prime Minister Stephen Harper has not formally met with his provincial counterparts as a group since coming to power in 2006, except for one brief dinner at his official residence. Maybe this is just the simplest way of avoiding the question of the Canadian constitution. During the 2014 spring election campaign, Quebec Liberal Party leader and Quebec premier Philippe Couillard briefly considered returning to the fray and launching discussions with his counterparts so that the province could, at last, sign the 1982 constitution. One day later, however, he backed down, apparently because of ­reactions from outside Quebec. Although it has not supported federal-provincial dialogue at the summit level or promoted constitutional discussions, Harper’s government, via Heritage Canada, is planning a range of activities to commemorate Canada’s 150th anniversary in 2017. Citizens throughout the country will be invited to celebrate the event and to discuss the following themes among themselves: Canadian patriotism, self-sacrifice, and commitment to service; the value of personal responsibility, sustained effort, and the family; the stability of the nation; the rights and duties of citizens; and fairness and openness to all.2 Surprisingly, the importance of federalism and the tapestry of diversity were not among the suggested themes, giving us another reason to highlight some past events in our history and constitutional origins. In a country where, traditionally, French-speaking and Englishspeaking historians have made a point of ignoring each other, our goal is to bring together under the same cover a range of texts from both sides to represent the historiographical record and its evo­ lution. We think readers will appreciate this contrasted approach, with its nuances, convergences, and divergences in terms of both

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substance and form. Second, to counterbalance the effects of the current era in which social media and blogs promote the instantaneous and the extreme present, we wanted to give pride of place to the views of historians from previous generations concerning the pre-1867 constitutions. Among these authors the earliest, FrançoisXavier Garneau, published his key works from 1845 onwards, while those closest to us, J.M.S. Careless and Pierre Tousignant, wrote their selected excerpts between 1965 and 1971. A similar approach is found in As I Recall/Si je me souviens bien, published in 1999 under the editorship of John Meisel in which thirty-four events from our ­history are presented and discussed in turn by representatives of the Frenchspeaking and English-speaking historiographical traditions.3 In addition to the summaries of Canadian and Quebec history mentioned at the end of this introduction, several other reference works provide suitable support for readers of this anthology. First, the technical but eminently clear study by legal experts Jacques-Yvan Morin and José Woehrling, who present an in-depth analysis of ­constitutional developments under British rule in their book on the Canadian and Quebec constitutions from the French regime to the present.4 In their view, everything begins with the surrender of Montreal on 8 September 1760. To highlight the tragic nature of the event, they quote from historian Thomas Chapais in whose view the capitulation placed the Canadian people “under the yoke of the ancient enemy” so different in terms of “language, religion, manners, customs and laws.”5 Chapais is one of the historians featured in our anthology. Next, historian Yvan Lamonde, who takes a broader view than Morin and Woehrling, examines the evolution of the constitution against a more general background in his book on the social history of ideas in Quebec between 1760 and 1896.6 With U Q A M rector Claude Corbo, Lamonde also published an outstanding anthology of political thought in Quebec with famous texts by  Étienne Parent, Louis-Hippolyte LaFontaine, Louis-Joseph Papineau, and Lord Durham.7 In another book edited by the great Université Laval historian Jean Hamelin, André Garon wrote four highly relevant chapters (with Jacques Mathieu for the first) on the period covered by our anthology. The titles speak for themselves: “A New Home Country (1754–1763),” “Britanization (1763–1791),” “Lower Canada (1792–1838),” and “Tutorship (1836–1867).”8 Constitutional history is but one chapter of history with a capital H. In Canada, for over a century, history has mainly been interpreted

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through the work of two academic and intellectual communities, one French-speaking and the other English-speaking, each with its own traditions, approaches and disputes. Serge Gagnon has written extensively about Quebec’s French-language historians. As a result, when preparing this introduction, we regretted even more not including excerpts by historians J.B.A. Ferland, Benjamin Sulte, Edmond Lareau, and Arthur Maheux (who was an adversary of Lionel Groulx and was more sympathetic than Groulx and his ­successors to the promises of the LaFontaine–Baldwin reformist ­alliance).9 To understand the originality of Michel Brunet’s and Maurice Séguin’s work found in the second part of this anthology, it is important to read Jean Lamarre’s contribution on the Montrealbased school of history with which they were associated, along with Guy Frégault’s text.10 Historian Ronald Rudin, too, helped enrich our understanding of the main debates and methodological challenges in the field of Quebec history during the second half of the twentieth century.11 Last, many of the French-language historians whose writing is included in this anthology also expressed opinions about their methodological approach. These excerpts, along with far-reaching analysis about the epistemology and practice of history in Quebec, have been assembled by Éric Bédard and Julien Goyette.12 Our selection of French-language historians is almost classical: François-Xavier Garneau, Thomas Chapais, Lionel Groulx, Michel Brunet, Denis Vaugeois, Maurice Séguin, Séraphin Marion, and Pierre Tousignant: the exceptions may be Marion, a key player in the French-speaking world in Ontario and a pioneer in the field of literary criticism at the University of Ottawa; and Tousignant, an important but lesser-known historian who produced technically solid work, particularly on the 1791 constitution. Garneau is the first great national historian, Chapais and Groulx are associated with the professionalized approach to the teaching of history at Université Laval and Université de Montréal that began in 1915, while Brunet and Séguin, like their younger colleague Vaugeois, were the leaders of the new neo-nationalist approach to the study of history in the 1950s and 1960s. Among the main omissions we should mention is Marcel Trudel, the leading expert on New France.13 We could also have included Abbé Arthur Maheux, who engaged in discussions with Groulx and the English-language historians of the 1940s, but who had more faith in the possibility for agreement between French and English Canadians than Montreal-based Groulx and his disciples.14

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Last, since we have made room in this anthology for the constitutional interpretations of Brunet and Séguin, it is only fair to mention the work of Fernand Ouellet, their great adversary, who read the key parameters of economic history differently and logically came to an opposite conclusion concerning the future of French Canadians under British rule and in the Canadian federation.15 Many readers will discover the work of the English-speaking historians published here, such as John Bourinot, W.P.M. Kennedy, Adam Shortt, Arthur Doughty, Duncan McArthur, Alfred Leroy Burt, Hilda Neatby, and J.M.S. Careless. Mason Wade and Arthur Lower may be exceptions as Wade is an American historian who devoted a large part of his career work on the French Canadians, and Lower is often cited by Groulx and the neo-nationalist historians because he tried to understand the psychological impacts on a conquered people. In a doctoral thesis published in France over ten years ago, historian Laurence Cros prepared the ground by identifying and analyzing the various representations of Canada present in the work of Englishspeaking Canadian historians. The thesis focuses on works written between 1867 and 1970, roughly the period of the excerpts in our anthology. Cros places Bourinot among the Canadian imperialist historians of the late nineteenth and early twentieth centuries – in Canada, the teaching of history became professionalized earlier in English than in French, following the arrivals of George Wrong at the University of Toronto in 1894 and of Adam Shortt at Queen’s University.16 Cros’s book, and Carl Berger’s overview, reveals that conflicts of orientation and method arose among historians, such as Bourinot and J.C. Hopkins, who continued to promote imperial attachments; the supporters of a continentalist doctrine with an antiFrench-Canadian attitude, such as Goldwin Smith; the partisans of total autonomy for Canada, such as J.S. Ewart; and the imperialists with strong sympathy for Canadian autonomy and, to a lesser degree, for French Canadians, such as George Wrong, who wrote extensively on New France and frequently spent summers in La Malbaie (Murray Bay).17 The work of University of Toronto historian Carl Berger and his University of Alberta colleague Doug Owram must be read as complement to understand the evolution of English-language historiography both as an individual field and in the broader context of the English-Canadian intellectual community between 1900 and 1950.18 In the wake of World War I, historians, like many in the Englishlanguage community, were swept up in a wave of patriotism that

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encouraged them to look at consolidation in all areas of Canada’s political autonomy, including foreign policy. One way to review the question was to carry out a careful examination of how Canada’s institutional autonomy increased gradually between the start of British rule and the introduction of responsible government in 1848. This must be borne in mind when reading, in the first part of our anthology, the excerpts from W.P.M. Kennedy and Duncan McArthur. Kennedy, in particular, viewed with suspicion, from an Actonian point of view similar to that later developed by Pierre Elliott Trudeau, the need for a perfect fit between nation and state, an argument that he formulated on many occasions in his criticism of absolutist conceptions of sovereignty. His mistrust of nationalism is reflected in his discussion of the demands made by Lower Canada in the early nineteenth century.19 We have as many regrets in our selection of English-language historians as for our choice of their French-language counterparts. Besides some historians already mentioned who are not included here, we could of course have chosen excerpts from the classic work by Chester B. Martin on Canada’s progress toward governmental autonomy, and passages from the work of Donald Creighton on the economic driving force provided by Anglo-Scots merchants in parallel to the institutional evolution of the British regime.20 In the second part of the anthology, there is a logical connection explaining the presence of texts by Alfred Leroy Burt on the early years of British rule and of excerpts by his student, Hilda Neatby, on the Quebec Act. By devoting a large part of their careers, from the 1930s to the 1970s, to the history of Quebec, they launched a tradition continued, in the field of history and political science, by people such as Michael Oliver, Michael Behiels, William Coleman, and Kenneth McRoberts. Given the importance of Mason Wade’s sweeping narrative of French Canada, we did not limit our selection of excerpts from his book to the 1791 constitution. The last two historians included in the anthology are Arthur Lower and J.M.S. Careless. During the years between their work and that of their predecessors from the imperialist era, the world, Canada, and the discipline of history all changed significantly. The United States took the place of Great Britain as the significant other for, and sometimes as the main threat to, Canada’s national identity. Under the leadership of Donald Creighton and Harold Innis, economic history also began to win some ground back from political-constitutional history.21

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Lower deserves a special place in our introduction. In a country where, in recent years, indifference and mistrust appear to have become permanent features of relations between French- and English-speakers, his work deserves to be better known, and not just as part of this anthology. He considered the relationship between French and British civilization, as embodied here, as the fundamental antithesis in Canadian historical and political life. Of course, he displayed strong Canadian nationalism, but was always open to others and their differences. The following excerpt provides a good illustration of Lower’s spirit and style: Canada with its divisions of race presents no common denominator in those profundities which normally unite – in race, religion, history and culture. If a common focus is to be found, it must come out of the common homeland itself. If the Canadian people are to find their soul, they must seek for it, not in the English language or the French, but in the little ports of the Atlantic provinces, in the flaming autumn maples of the St. Lawrence valley, in the portages and lakes of the Canadian Shield, in the sunsets and relentless colds of the prairies, in the foothill, mountain and sea of the west, and in the unconquerable vastnesses of the north. From the land Canada, must come the soul of Canada.22 In the first part of the anthology, we present general surveys of the various constitutions enacted under British rule, as described by three English-language historians and constitutionalists and three French-language historians. We begin with excerpts from John Bourinot’s book Canada under British Rule, published in 1900. Bourinot’s point of view is that of a thinker from the Maritimes, favourable to an ongoing imperial link but also to greater autonomy for Canada. Concerning the period of military rule from 1760 and 1763, he emphasizes the generosity and fairness of the British administration. In the wake of the Treaty of Paris and the Royal Proclamation of 1763, any new British subjects who wished to leave had eighteen months to do so. The Canadians, as Catholics, were allowed to remain in the Roman Catholic Church to the extent permitted by English laws – which was negligible. Bourinot, like many others after him, sought to explain the differences between London’s aims and the actual situation in the colony. He then turns to the

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promulgation of the Quebec Act, which reflected imperial fears about the situation in the American colonies to the south, and was poorly received by many new British settlers in Canada. Less than twenty years after the Quebec Act, following defeat in America and the arrival in Canada of the Loyalists, London revised the arrangements for its North American possessions under the Constitutional Act of 1791. Bourinot provides a lucid explanation of the various points of view of British politicians and thinkers of the time, such as Burke, Fox, and Pitt, concerning policy in Canada. He then reviews political and institutional trends in the first half of the nineteenth century. In particular, he is harshly critical of Governor James Craig, and in his summary of the years 1841–64 gives most credit to Governor James Bruce Elgin. A different tone is used in the excerpts from the Cours d’histoire du Canada, based on the courses given by conservative historian Thomas Chapais at Université Laval in the years after the teaching of history became professionalized at both Université Laval and Université de Montréal, where Lionel Groulx taught. In theory, as recounted by Chapais, the Canadians were in a dire situation following the Royal Proclamation of 1763: French laws were challenged, access to judicial and administrative positions was blocked, and the free exercise of the Catholic religion was far from certain. Sympathetic to the actions of Governors Murray and Carleton, Chapais does not hide his admiration for the British Parliament and for the enlightened spirits such as Lord North who made substantial concessions to the Canadians in the Quebec Act of 1774, in particular concerning the free exercise of their religion and of French civil law. Chapais gives a clear explanation of the institutional balance introduced by the Quebec Act, despite the fact that it represented a step backward with regard to the possibility of establishing an elected legislative assembly. The institutional aspects of the Quebec Act, along with the ­geographic extension of the colony, had enormous strategic consequences for relations with the colonies to the south. Chapais examines the transition between the Quebec Act and the Constitutional Act of 1791 in a series of key paragraphs describing the way in which the British statesman Grenville perceived the people now to be known as Lower Canadians. Another tone emerges in the excerpts from Histoire du Canada depuis sa découverte jusqu’à nos jours by François-Xavier Garneau. A seminal work, in the words of Fernand Dumont, for the consolidation

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of a national reference for the Canadian experience moving toward its Quebec reconfiguration a century later, Garneau’s history was republished several times as the ideological influence of the Catholic Church on both Garneau and society at large increased. The excerpts brought together here are taken from the first edition of several volumes published between 1845 and 1852, in which Garneau explains the task of the historian, writing only a few years after the Durham report and the Act of Union, when dealing with the tragic nature of Canadian history. He is especially lucid and convincing when he describes the difficulties in both material and psychological terms of the early years of British rule. The following excerpt is one of those that made Garneau the first national historian of Canadians of French origin: Let us stop here to cast a glance back to the past. We have come to the end of the eighteenth century and the introduction of the representative regime in the country. Great events have been occurring under our eyes since 1755. All the misfortunes that can strike a people have come together to burden the Canadians. War, famine, unparalleled devastation, conquest, civil and military despotism, deprivation of political rights, abolition of ancient institutions and laws: all of this has occurred simultaneously or one after the next in our homeland in the space of half a century. One would have believed that the Canadian people, so young, so weak, numbering barely 66,000 souls in 1764 and in consequence still so fragile, would be broken, would have disappeared in the midst of the terrible long tempests raised by the most powerful nations in Europe and America, and that, like a vessel swallowed by the ocean’s waves, it would have left behind no trace. Yet, this has not happened.23 It is impossible not to notice, when reading the works of Lionel Groulx, that he had a first-rate analytical mind and, like Garneau and Chapais, a deep affection for the French Canadians, who survived the ultimate ordeal of the Conquest and displayed, throughout their history, their “impatience under any yoke” and “passion for freedom.” Groulx divided the period of British rule into four periods: provisional rule (1760–64), rule as a crown colony (1764–91), the parliamentary regime (1791–1848) and, last, the road leading from Canada’s autonomy to its independence (1848–1931). Readers

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will appreciate, in particular, his analysis of the causes and extraordinary nature of the Quebec Act, as well as his ideas on the irreconcilable antagonism at the heart of the 1791 constitutional mechanism, which led inevitably to the tragedy of 1837 and 1838. The first part of the anthology ends with excerpts from two important books in English-language histories from the early decades of the twentieth century: The Constitution of Canada, An Introduction to its Development and Law, published in 1922 by W.P.M. Kennedy; and the encyclopedic work of Adam Shortt and Arthur Doughty, Canada and its Provinces: A History of the Canadian People, published in twentythree volumes between 1913 and 1917. The excerpts included here were written by Queen’s University historian Duncan McArthur. As the twentieth century advances, the prose of these Englishspeaking intellectuals begins to reflect a slow but sure shift from the dual British and Canadian loyalty still present in the work of Bourinot to a primary loyalty to Canada, as the tale of its progress toward full autonomy is told. Like their French-language counterparts, the historians are models of rigour and truth. Kennedy is particularly clearsighted about the conflict of civilizations opposing France and Great Britain during the Seven Years War. Concerning the early years of British rule, readers will note his criticism of the Royal Proclamation of 1763 and his appreciation of Murray’s courage and benevolence. He presents a precise analysis of the legal implications of the Quebec Act and the balance between the published text and the secret instructions. We will return to this topic in the paragraphs describing the second part of the anthology. Innovatively, Kennedy looks in more detail at the points of view of subjects of British origin and the reactions of the American colonies to the Quebec Act, indirectly criticizing the social conservatism inherent in the strengthening of the French civil laws and the seigniorial regime. Concerning the struggles over the institutional mechanisms of the 1791 constitution, Kennedy, like Craig and later Durham, sees them as a conflict of race rather than principle. The excerpts from Duncan McArthur’s work highlight the Crown’s preponderant role in the first years of British rule. Like Kennedy, he points out that the freedoms granted to the Catholic Church in Canada, both before and after the Quebec Act, were remarkable given the situation in the parent country. Like Groulx, McArthur considers that the nature and role of the legislative council established by the 1791 constitution were abnormal and problematic. He also recognizes that the governments in both

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Lower and Upper Canada share some of the responsibility for the crisis of 1837. The second part of the anthology places, side by side, the commentaries of a French-speaking and an English-speaking historian concerning each of our first four constitutions. The only exception is for the Act of Union and its repercussions, where we present excerpts from Arthur Lower and J.M.S. Careless on the English side, and Maurice Séguin and Denis Vaugeois on the French side. Part Two begins with the views of Alfred Leroy Burt on the former province of Quebec that emerged from the initial enactments of the British regime. As Burt points out, the acquisition of Canada presented the British Empire with a complex problem, one episode in a modern-day Hundred Years War with the hereditary French enemy that lasted from 1690 to 1815. Burt provides a lucid description of the Canadians’ situation and of the strategic calculations and positions of the main players involved in colonial policy in London: King George III, the Whig oligarchy, and Pitt the Elder. The end result depended on the Royal Proclamation with all its promises and ambiguities, the Instructions sent to Murray, and the choices Murray made when implementing the orders, based on his own comprehension of the situation. Despite all the fluctuations and ambiguities of the regime resulting from the Royal Proclamation, marked by Murray’s and Carleton’s outstanding personalities, the fundamental imperial aim was to establish a systematic program to transform the former French colony into a truly British one. Michel Brunet, in turn, emphasizes that the war that ended in the 1760 capitulation marked, in fact, the end of a pitiless struggle over a seventyyear period. The colony was in ruins, and the Canadian population awaited the next events wearily. Brunet considers that, overall, the attitude of the new British authorities toward the Canadians was sound, a judgement that covers both Murray’s benevolence and Carleton’s paternal despotism. Brunet explains the incoherence of the regime established by the Royal Proclamation, and in particular the disorderly administration of justice. In other excerpts, he explains how the regime evolved to the system defined by the Quebec Act, and looks at the background to the American invasion of 1775. Séraphin Marion is not the first, in this anthology, to point out that the Quebec Act of 1774 represented a radical change of direction by the British authorities. It involved substantial modifications to the

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colony’s borders, the re-establishment of French civil law, the regularization of the status of the Catholic Church, and a suspension of the promise to establish a legislative assembly when permitted by circumstances. Should it be seen as a magnanimous gesture of goodwill and humanity, or as an action based on self-interest in the face of a growing threat in the American colonies to the south? Marion opts for the second explanation, and he is not alone. Hilda Neatby, a student of Alfred Leroy Burt and, like him, a native of western Canada, devoted much of her career to studying the Quebec Act. Gradually, between 1767 and 1773, London and the colonial administration convinced themselves of the need for more rational, more effective legislative provisions in the colony. New and old subjects, merchants, seigniors and clergy, as well as central and colonial administrators, all petitioned London to express their points of view and make recommendations. According to Neatby, it is clear that the bill tabled in the British Parliament matched, in its essence, the wishes and aims of the Canadians as interpreted by Carleton. She also notes that it was clearly unacceptable for the American colonies and that the American War of Independence was a logical outcome. However, when she looks at the instructions and secret directions that accompanied the Quebec Act, concerning both civil law and also religious issues, Neatby concludes that the legal mechanism was not as liberal as it first appeared. Her wording is always subtle, as shown in the ­following excerpt: In short, if the Act and all the instructions are read together and thought of as equally expressing the policy of the ministry, that policy can be seen only as one of gentle but steady and determined Anglicization … It was, however, the Act that was binding and not the instructions. It would be unrealistic not to recognize that the responsible ministers knew that their essential policy must be expressed in the Act, and that instructions were secondary. By 1774 it is clear that the government, having procrastinated too long, was dominated by one idea. In view of the crisis in America some definite settlement must be made immediately for Quebec and for the upper country. That being so, it was desirable that the plan be simple and clear cut. It was also important that it be agreeable to Carleton, who was trusted to produce in Quebec the desirable results that he had promised.24

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Mason Wade’s The French Canadians, 1760–1945, published in English in 1955, is the most important and most far-ranging book on this subject written by an American historian since the pioneering work of Francis Parkman. With the goal of writing an objective survey based on the work of English- and French-speaking historians living in sovereign solitude in Canada, Wade applied the processes of history, political science, and psychology in order to better understand his subject. Although he was constantly impressed by the fiery zest for life expressed by the French Canadians throughout the numerous vicissitudes of their history, he also believed that their minority situation in America had negative psychological consequences. Wade considered that the Quebec Act was the Great Charter of the French Canadians. This anthology includes mainly excerpts relating to events after 1774–75 when, to use Wade’s own words, the Quebec Act became “a red rag to the American colonial bull.” The Constitutional Act of 1791, the work of Pitt the Younger and Grenville, was a response to the American War of Independence and the arrival of large numbers of loyalists. The interest of Mason Wade’s work lies less in his discussion of the institutional mechanism of the 1791 constitution than in his understanding of the ethnic nature of the tensions in Lower Canada, part of an international context marked by the Jacobin Reign of  Terror in France and a new war between France and Great Britain. From the first major language debate in the legislative assembly in 1792 to the birth of the French Canadian nation in 1849, he reviews conflicts in the colony both before and after the rebellions of 1837 and 1838. Observing the same events, the analysis by Université de Montréal historian Pierre Tousignant, also included here, appeared highly original when published in 1971. Instead of focusing exclusively on constitutional mechanisms in the colony, Tousignant undertakes to explain, a little like Montesquieu, the spirit of the act by a subtle but rigorous analysis of the political and social forces at play in late ­eighteenth-century Great Britain. In the land of Pitt the Younger, Grenville, Burke, and Charles James Fox, the joint interests of landowners and the commercial middle classes had a preponderant influence on the system. Although it was necessary to divide the colony to deal with the arrival of the loyalists, something that was clear for Grenville, it was also imperative to limit the powers of the legislative assemblies that would become indispensable in both Lower and Upper Canada. Tousignant considers that the new constitution has

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to be dissociated from any planned assimilation. As revolutionary turmoil continued in France, the British leaders continued to place their trust in their own regime and optimistically believed that the Canadians would come to love their new fundamental law. As we all know, they could not have been further from the mark. Our primary objective, in this anthology, is to give new voice to historians who wrote, roughly between 1845 and 1971, about Canadian constitutions prior to 1867. For those who are mainly interested in understanding more about the various colonial crises of the early nineteenth century that led to the rebellions of 1837 and 1838, or about the immediate causes of the rebellions and their eventual failure, we recommend the analysis of McGill University historian Yvan Lamonde.25 The nationalist Canadian historian Arthur Lower reveals, in the excerpts in this anthology, the lack of imagination displayed by the British authorities in the years leading up to the rebellions, and writes evocatively about the complex personality of Lord Durham, the political and social context in which he wrote his report, and his understanding of liberalism and mercantilism. Lower’s work focuses less on the actual text of the Act of Union, indisputably harsh for the French Canadians and unfair toward Lower Canada, and more on the liberal and moderate reformism of Baldwin, LaFontaine and Elgin that eventually led to the introduction of responsible government in 1848. According to Lower, it is thanks to them that Canada was able to avoid Ireland’s tragic fate. For neo-nationalist historians in a French Canada hurriedly trying to define its own identity in the form of Quebec society, such as Denis Vaugeois, one brutal question must be asked: was the union of the two Canadas a new conquest? From Vaugeois’ point of view, the facts speak for themselves: Canada only obtained political emancipation once English settlers were in the majority. The Act of Union made the French Canadians into a minority and condemned them to a political existence as a subordinate force. In all the key areas of political life, according to Vaugeois, the French Canadian community was deprived of a distinct, autonomous ability to act to further its own interests. The anthology ends with work by J.M.S. Careless and Maurice Séguin, once again discussing the Act of Union. Careless, writing in the 1960s, does not deny that the regime introduced by the Act of Union was intended to stifle the French Canadians. His analysis goes back to the Durham Report and looks in detail at the various aspects of constitutional reform instituted by Lord Durham. However,

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whatever Durham’s intentions and those of the constituting powers, the situation in the colony changed dramatically thanks to the actions of the reformers in both Canada West and Canada East – the Baldwin-LaFontaine axis. LaFontaine, described as brilliant and moderate by Careless, could count on support from AugustinNorbert Morin and Étienne Parent. Baldwin, in turn, had Francis Hincks, who maintained an ongoing correspondence with LaFontaine. The reformist alliance helped cement a dualistic idea of Canada in contemporary minds. Maurice Séguin, the intellectual father of the Montreal School, developed an approach that was both nationalist and pessimistic concerning the evolution of British rule since the Conquest in 1760, and saw the Act of Union as the second capitulation by the French Canadians. After recalling the episode where Parent, who spent some time in prison, spoke of the ineluctable assimilation of the French Canadians around the time of the  1837–38 rebellions, Séguin describes how Parent and then LaFontaine rallied to support the regime introduced by the Act of  Union, accepting a permanent minority role for the French Canadians. Séguin sticks to his thesis: the federal union of 1867, ardently desired by Parent, did nothing to change this situation. As we mentioned at the beginning of this introduction, any selection of texts for an anthology is, by its very nature, imperfect. Some important and useful viewpoints will always be neglected or omitted. English and French historians have continued to make enormous progress since 1971 in their analyses of all these constitutional documents.26 We hope that the academic community and the general public will feel sufficiently interested, in the years leading up to the 150th anniversary of the 1867 constitution, to produce and read even more work on this crucial dimension of our history. Of course, a country’s constitution should not become an obsession, but nor should it be a taboo. In a complex country such as ours, an enlightened opinion can only be formed by looking at a full range of historical documents in both French and English, from both the present and the past.

Not e s   1 The program for the colloquium and its key themes are available at http://www.conferencedequebec.org/.

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  2 The main information about the commemoration and the program for Canada 150: Road to 2017 is taken from the Canadian government ­website, accessed 29 April 2014, http://canada150.gc.ca/eng/ 1344275520795/1344275731901.   3 John Meisel, ed., As I Recall/Si je me souviens bien (Montreal: Institut de recherche sur les politiques publiques, 1999).   4 Jacques-Yvan Morin and José Woehrling, Les constitutions du Canada et du Québec du régime français jusqu’à nos jours, tome premier, études (Montreal: Les Éditions Thémis, 1994). The texts of the four constitutions analyzed in this anthology can be found at the following websites (in English): http://www.solon.org/Constitutions/Canada/English/PreConfederation/ rp_1763.html http://www.solon.org/Constitutions/Canada/English/PreConfederation/ qa_1774.html http://www.slmc.uottawa.ca/?q=leg_constitution_act_1791 http://www.solon.org/Constitutions/Canada/English/PreConfederation/ ua_1840.html Similarly, readers will find maps showing the shifting boundaries of Canada and Quebec under British rule.   5 Morin and Woehrling, 42.   6 Yvan Lamonde, Histoire sociale des idées au Québec: 1760–1896 (Montreal: Fides, 2000).   7 Lamonde and Claude Corbo, Le rouge et le bleu: Une anthologie de la pensée politique au Québec de la Conquête à la Révolution tranquille (Montreal: Presses de l’Université de Montréal, 1999).   8 Jean Hamelin, ed., Histoire du Québec (St-Hyacinthe : Edisem, 1977).   9 Serge Gagnon, Le Québec et ses historiens de 1840 à 1920 (Quebec City: Presses de l’Université Laval, 1978). See also, by the same author, Le passé composé: de Ouellet à Rudin (Montreal: VL B , 1999). 10 Jean Lamarre, Le devenir de la nation québécoise selon Maurice Séguin, Guy Frégault et Michel Brunet (Sillery: Septentrion, 1993). Brunet and Séguin, as the successors to Groulx in the nationalist school of thought, were partly inspired in their economic analysis by the work of historians Donald Creighton and Harold Innis, who had instigated a shift toward economic and social analysis in English-language constitutional historiography. 11 Ronald Rudin, Faire de l’histoire au Québec (Sillery: Septentrion, 1998). 12 Éric Bédard and Julien Goyette, eds., Parole d’historiens: Anthologie des ­réflexions sur l’histoire au Québec (Montreal: Presses de l’Université de Montréal, 2006).

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13 Marcel Trudel, Histoire de la Nouvelle-France: le régime militaire et la disparition de la Nouvelle-France, volume 10 (Montreal: Fides, 1999). 14 Arthur Maheux, Ton histoire est une épopée (Quebec: Charrier & Dugal, 1941). 15 Fernand Ouellet, Histoire économique et sociale du Québec 1760–1850: Structures et Conjoncture (Montreal: Fides, 1966); see also, by the same author, “Les fondements historiques de l’option séparatiste dans le Québec,” Canadian Historical Review XLIII(3) (September 1962), 185–203. 16 Laurence Cros, La représentation du Canada dans les écrits des historiens ­anglophones canadiens (Paris: Collection des thèses du Centre d’études ­canadiennes de Paris III /Sorbonne Nouvelle, 2000). 17 Cros, 35–80. 18 Carl Berger, The Writing of Canadian History: Aspects of English-Canadian Historical Writing, 1900–1970 (Toronto: Oxford University Press, 1976); see also Doug Owram, The Government Generation: Canadian Intellectuals and the State, 1900-1945 (Toronto: University of Toronto Press, 1986). 19 Berger, 40. 20 Chester B. Martin, Empire and Commonwealth: Studies in Governance and SelfGovernment in Canada (Oxford: Clarendon Press, 1929); see also Donald Creighton, The Empire of the St-Lawrence (Toronto: Macmillan, 1956), and Dominion of the North (Boston: Houghton Mifflin Company, 1944). 21 See J.M.S. Careless, “Frontierism, Metropolitanism and Canadian History,” in Approaches to Canadian History, ed. Carl Berger (Toronto: University of Toronto Press, 1967), 63–83. 22 Arthur Lower, Colony to Nation, 4th ed. (Don Mills: Longman, 1964), 564. For critical studies of Lower’s work, see Cros, 273–300, and Berger, ­112–36. Lower was more than simply a historian: he was also a public intellectual. For studies of Lower as a prominent public intellectual in both Quebec and the rest of Canada, see Nelson Wiseman, “Public Intellectual in Twentieth-Century Canada,” in The Public Intellectual in Canada, ed. Nelson Wiseman (Toronto: University of Toronto Press, 2013), 67–82; see also, in the same work, Alain-G. Gagnon, “Quebec Public Intellectuals in Times of Crisis,” 98–108. 23 François-Xavier Garneau, Histoire du Canada Depuis sa découverte jusqu’à nos jours (Quebec: Imprimerie N. Aubin, 1845), vol. 1, 164. 24 Hilda Neatby, Quebec: The Revolutionary Age, 1760-1791 (Toronto, McClelland & Stewart, 1966), 235. 25 Yvan Lamonde, Histoire sociale des idées au Québec: 1760–1896 (Montreal: Fides, 2000), 273–79.

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26 In English, see Margaret Conrad and Alvin Finkel, History of the Canadian Peoples: Beginnings to 1867, 5th ed. (Toronto: Pearson Education Canada, 2008); see also R. Douglas Francis, Richard Jones, Donald B. Smith, and Robert Wardhaugh, Origins: Canadian History to Confederation, 12th ed. (Toronto: Nelson College Indigenous, 2012). In French, see in particular Craig Brown, Histoire générale du Canada (Montreal: Boréal, 1990); Paul-André Linteau, Histoire du Canada (Paris: Presses universitaires de France, 2011); Paul-André Linteau, René Durocher and François Ricard, Histoire du Québec contemporain (Montreal: Boréal, 1989); Jean-Pierre Charland, Une histoire du Canada contemporain: de 1850 à nos jours (Quebec: Septentrion, 2007); Éric Bédard, Les réformistes: une génération canadienne-française au XIXe siècle (Montreal: Boréal, 2009); Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel, 6th ed. (Cowansville: Les Éditions Yvon Blais), 2014.

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P a rt O n e

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Canada under British Rules 1760–1900 Sir John George Bourinot 1

Ch a p t e r I I : B e g i n n i n gs of British Rule 1 7 0 0 – 1 774 Section I – From the Conquest until the Quebec Act For nearly four years after the surrender of Vaudreuil at Montreal, Canada was under a government of military men, whose headquarters were at Quebec, Three Rivers, and Montreal – the capitals of the old French districts of the same name. General Murray and the other commanders laboured to be just and considerate in all their relations with the new subjects of the Crown, who were permitted to prosecute their ordinary pursuits without the least interference on the part of the conquerors. The conditions of the capitulations of Quebec and Montreal, which allowed the free exercise of the Roman Catholic religion, were honourably kept. All that was required then, and for many years later, was that the priests and cures should confine themselves exclusively to their parochial duties, and not take part in public matters. It had been also stipulated at Montreal that the communities of nuns should not be disturbed in their convents; and while the same privileges were not granted by the articles of capitulation to the Jesuits, Récollets, and Sulpicians, they had every facility given to them to dispose of their property and remove to France. As a matter of fact there was practically no interference with any of the religious fraternities during the early years of British rule; and when in the course of time the Jesuits disappeared entirely from the country their estates passed by law into the possession of the government for the use of the people, while the Sulpicians were

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eventually allowed to continue their work and develop property which became of great value on the island of Montreal. The French merchants and traders were allowed all the commercial and trading privileges that were enjoyed by the old subjects of the British Sovereign, not only in the valley of the St Lawrence, but in the rich fur regions of the West and North-West. The articles of capitulation did not give any guarantees or pledges for the continuance of the civil law under which French Canada had been governed for over a century, but while that was one of the questions dependent on the ultimate fate of Canada, the British military rulers took every possible care during the continuance of the military regime to respect so far as possible the old customs and laws by which the people had been previously governed. French writers of those days admit the generosity and justice of the administration of affairs during this military régime. The Treaty of Paris, signed on the 10th February 1763, formally ceded to England Canada as well as Acadia, with all their dependencies. The French Canadians were allowed full liberty “to profess the worship of their religion according to the rites of the Romish Church, as far as the laws of Great Britain permit.” The people had permission to retire from Canada with all their effects within eighteen months from the date of the ratification of the treaty. All the evidence before us goes to show that only a few officials and seigniors ever availed themselves of this permission to leave the country. At this time there was not a single French settlement beyond Vaudreuil until the traveller reached the banks of the Detroit between Lakes Erie and Huron. A chain of forts and posts connected Montreal with the basin of the great lakes and the country watered by the Ohio, Illinois, and other tributaries of the Mississippi. The forts on the Niagara, at Detroit, at Michillimackinac, at Great Bay, on the Maumee and Wabash, at Presqu’isle, at the junction of French Creek with the Alleghany, at the forks of the Ohio, and at less important localities in the West and South-West, were held by small English garrisons, while the French still occupied Vincennes on the Wabash and Chartres on the Mississippi, in the vicinity of the French settlements at Kaskaskia, Cahokia, and the present site of St Louis. […] This Indian war was still in progress when King George III issued his proclamation for the temporary government of his new dependencies in North America. As a matter of fact, though the

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proclamation was issued in England on the 7th October, 1763, it did not reach Canada and come into effect until the 10th August, 1764. The four governments of Quebec, Grenada, East Florida, and West Florida were established in the territories ceded by France and Spain. The eastern limit of the province of Quebec did not extend beyond St John’s River at the mouth of the St Lawrence, nearly opposite to Anticosti, while that island itself and the Labrador country, east of the St John’s as far as the Straits of Hudson, were placed under the jurisdiction of Newfoundland. The islands of Cape Breton and St John, now Prince Edward, became subject to the Government of Nova Scotia, which then included the present province of New Brunswick. The northern limit of the province did not extend beyond the territory known as Rupert’s Land under the charter given to the Hudson’s Bay Company in 1670, while the western boundary was drawn obliquely from Lake Nipissing as far as Lake St Francis on the St Lawrence; the southern boundary then followed line 45º across the upper part of Lake Champlain, whence it passed along the highlands which divide the rivers that empty themselves into the St Lawrence from those that flow into the sea – an absurdly defined boundary since it gave to Canada as far as Cape Rosier on the Gaspé peninsula a territory only a few miles wide. No provision whatever was made in the proclamation for the government of the country west of the Appalachian range, which was claimed by Pennsylvania, Virginia, and other colonies under the indefinite terms of their original charters, which practically gave them no western limits. Consequently the proclamation was regarded with much disfavour by the English colonists on the Atlantic coast. No provision was even made for the great territory which extended beyond Nipissing as far as the Mississippi and included the basin of the great lakes. It is easy to form the conclusion that the intention of the British government was to restrain the ambition of the old English colonies east of the Appalachian range, and to divide the immense territory to their north-west at some future and convenient time into several distinct and independent governments. No doubt the British government also found it expedient for the time being to keep the control of the fur-trade so far as possible in its own hands, and in  order to achieve this object it was necessary in the first place to conciliate the Indian tribes, and not allow them to come in any way under the jurisdiction of the chartered colonies. The proclamation itself, in fact, laid down entirely new, and certainly equitable,

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methods of dealing with the Indians within the limits of British sovereignty. The governors of the old colonies were expressly forbidden to grant authority to survey lands beyond the settled territorial limits of their respective governments. No person was allowed to purchase land directly from the Indians. The government itself thenceforth could alone give a legal title to Indian lands, which must, in the first place, be secured by treaty with the tribes that claimed to own them. This was the beginning of that honest policy which has distinguished the relations of England and Canada with the Indian nations for over a hundred years, and which has obtained for the present Dominion the confidence and friendship of the many thousand Indians, who roamed for many centuries in Rupert’s Land and in the Indian Territories where the Hudson’s Bay Company long enjoyed exclusive privileges of trade. The language of the Proclamation with respect to the government of the province of Quebec was extremely unsatisfactory. It was ordered that so soon as the state and circumstances of the colony admitted, the governor-general could with the advice and consent of the members of the council summon a general assembly, “in such manner and form as is used and directed in those colonies and provinces in America which are under our immediate government.” Laws could be made by the governor, council, and representatives of the people for the good government of the colony, “as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies.” Until such an assembly could be called, the governor could with the advice of his council constitute courts for the trial and determination of all civil and criminal cases, “according to law and equity, and as near as may be agreeable to the laws of England,” with liberty to appeal, in all civil cases, to the privy council of England. General Murray, who had been in the province since the battle on the Plains of Abraham, was appointed to administer the government. Any persons elected to serve in an assembly were required, by his commission and instructions, before they could sit and vote, to take the oaths of allegiance and supremacy, and subscribe a declaration against transubstantiation, the adoration of the Virgin, and the Sacrifice of the Mass. This proclamation – in reality a mere temporary expedient to give time for considering the whole state of the colony – was calculated to do infinite harm, since its principal importance lay in the fact that it attempted to establish English civil as well as criminal law, and at the

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same time required oaths which effectively prevented the French Canadians from serving in the very assembly which it professed a desire on the part of the king to establish. The English-speaking or Protestant people in the colony did not number in 1764 more than three hundred persons, of little or no standing, and it was impossible to place all power in their hands and to ignore nearly seventy thousand French Canadian Roman Catholics. Happily the governor, General Murray, was not only an able soldier, as his defence of Quebec against Lévis had proved, but also a man of statesmanlike ideas, animated by a high sense of duty and a sincere desire to do justice to the foreign people committed to his care. He refused to lend himself to the designs of the insignificant British minority, chiefly from the New England colonies, or to be guided by their advice in carrying on his government. His difficulties were lessened by the fact that the French had no conception of representative institutions in the English sense, and were quite content with any system of government that left them their language, religion, and civil law, without interference. The stipulations of the capitulations of 1759–1760, and of the Treaty of Paris, with respect to the free exercise of the Roman Catholic religion, were always observed in a spirit of great fairness; and in 1766 Monseigneur Briand was chosen, with the governor’s approval, Roman Catholic bishop of Quebec. He was consecrated at Paris after his election by the chapter of Quebec, and it does not appear that his recognition ever became the subject of parliamentary discussion. This policy did much to reconcile the French Canadians to their new rulers, and to make them believe that eventually they would receive full consideration in other essential respects. For ten years the government of Canada was in a very unsatisfactory condition, while the British ministry was all the while worried with the condition of things in the old colonies, then in a revolutionary ferment. The Protestant minority continued to clamour for an assembly, and a mixed system of French and English law, in case it was not possible to establish the latter in its entirety. AttorneyGeneral Masères, an able lawyer and constitutional writer, was in favour of a mixed system, but his views were notably influenced by his strong prejudices against Roman Catholics. The administration of the law was extremely confused until 1774, not only on account of the ignorance and incapacity of the men first sent out from England to preside over the courts, but also as a consequence of the steady

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determination of the majority of French Canadians to ignore laws to which they had naturally an insuperable objection. In fact, the condition of things became practically chaotic. It might have been much worse had not General Murray, at first, and Sir Guy Carleton, at a later time, endeavoured, so far as lay in their power, to mitigate the hardships to which the people were subject by being forced to observe laws of which they were entirely ignorant. At this time the governor-general was advised by an executive council, composed of officials and some other persons chosen from the small Protestant minority of the province. Only one French Canadian appears to have been ever admitted to this executive body. The English residents ignored the French as far as possible, and made the most unwarrantable claims to rule the whole province. […] The result of the deliberation of years was the passage through the British parliament of the measure known as “The Quebec Act” which has always been considered the charter of the special privileges which the French Canadians have enjoyed ever since, and which, in the course of a century, made their province one of the most influential sections of British North America. The preamble of the Quebec Act fixed new territorial limits for the province. It comprised not only the country affected by the proclamation of 1763, but also all the eastern territory which had been previously annexed to Newfoundland. In the west and south-west the province was extended to the Ohio and the Mississippi, and in fact embraced all the lands beyond the Alleghanies coveted and claimed by the old English colonies, now hemmed in between the Atlantic and the Appalachian range. It was now expressly enacted that the Roman Catholic inhabitants of Canada should thenceforth “enjoy the free exercise” of their religion, “subject to the king’s supremacy declared and established” by law, and on condition of taking an oath of allegiance, set forth in the act. The Roman Catholic clergy were allowed “to hold, receive, and enjoy their accustomed dues and rights, with respect to such person only as shall confess the said religion” – that is, one twenty-sixth part or the produce of the land, Protestants being specially exempted. The French Canadians were allowed to enjoy all their property, together with all customs and usages incident thereto, “in as large, ample and beneficial manner,” as if the proclamation or other acts of the crown “had not been made”; but the religious orders and communities were excepted in

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accordance with the terms of the capitulation of Montreal – the effect of which exception I have already briefly stated. In “all matters of controversy relative to property and civil rights,” resort was to be had to the old civil law of French Canada “as the rule for the decision of the same”; but the criminal law of England was extended to the province on the indisputable ground that it’s “certainty and lenity” were already “sensibly felt by the inhabitants from an experience of more than nine years.” The government of the province was entrusted to a governor and a legislative council appointed by the crown, “inasmuch as it was inexpedient to call an assembly.” The council was to be composed of not more than twenty-three residents of the province. At the same time the British parliament made special enactments for the imposition of certain customs duties “toward defraying the charges of the administration of justice and the support of the civil government of the province.” All deficiencies in the revenues derived from these and other sources had to be supplied by the imperial treasury. During the passage of the act through parliament, it evoked the bitter hostility of Lord Chatham, who was then the self-constituted champion of the old colonies, who found the act most objectionable not only because it established the Roman Catholic religion, but placed under the government of Quebec the rich territory west of the Alleghanies. Similar views were expressed by the Mayor and Council of London, but they had no effect. The king, in giving his assent, declared that the measure “was founded on the clearest principles of justice and humanity, and would have the best effect in ­quieting the minds and promoting the happiness of our Canadian subjects.” In French Canada the act was received without any popular demonstration by the French Canadians; but the men to whom the great body of that people always looked for advice and guidance – the priests, curés, and seigniors – naturally regarded these concessions to their nationality as giving most unquestionable evidence of the considerate and liberal spirit in which the British government was determined to rule the province. They had had ever since the conquest satisfactory proof that their religion was secure from all interference, and now the British parliament itself came forward with legal guarantees, not only for the free exercise of that religion, with all its incidents and titles, but also for the permanent establishment of the civil law to which they attached so much importance. The fact that no provision was made for a popular assembly could

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not possibly offend a people to whom local self-government in any form was entirely unknown. It was impossible to constitute an assembly from the few hundred Protestants who were living in Montreal and Quebec, and it was equally impossible, in view of the religious prejudices dominant in England and the English colonies, to give eighty thousand French Canadian Roman Catholics privileges which their co-religionists did not enjoy in Great Britain and to allow them to sit in an elected assembly. Lord North seemed to voice the general opinion of the British parliament on this difficult subject, when he closed the debate with an expression of “the earnest hope that the Canadians will, in the course of time, enjoy as much of our laws and as much of our constitution as may be beneficial to that country and safe for this”; but “that time,” he concluded, “had not yet come.” It does not appear from the evidence before us that the British had any other motive in passing the Quebec Act than to do justice to the French Canadian people, now subjects of the crown of England. It was not a measure primarily intended to check the growth of popular institutions, but solely framed to meet the actual conditions of a people entirely unaccustomed to the working of representative or popular institutions. It was a preliminary step in the development of self-government. On the other hand the act was received with loud expressions of dissatisfaction by the small English minority who had hoped to see themselves paramount in the government of the province. In Montreal, the headquarters of the disaffected, an attempt was made to set fire to the town, and the king’s bust was set up in one of the public squares, daubed with black, and decorated with a necklace made of potatoes, and bearing the inscription Voilà le pape du Canada & le sot Anglais. The author of this outrage was never discovered, all the influential French Canadian inhabitants of the community were deeply incensed that their language should have been used to insult a king whose only offence was his assent to a measure of justice to themselves. Sir Guy Carleton, who had been absent in England for four years, returned to Canada on the 18th September 1774, and was well received in Quebec. The first legislative council under the Quebec Act was not appointed until the beginning of August, 1775. Of the twenty-two members who composed it, eight were influential French Canadians bearing historic names. The council met on the 17th August, but was forced to adjourn on the 7th September, on

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account of the invasion of Canada by the troops of the Continental Congress, composed of representatives of the rebellious element of the Thirteen Colonies. […] Coming to the province of Lower Canada we find it contained at this time a population of about a hundred thousand souls, of whom six thousand lived in Quebec and Montreal respectively. Only two thousand English-speaking persons resided in the province, almost entirely in the towns. Small as was the British minority, it continued that agitation for an assembly which had been commenced long before the passage of the Quebec act. A nominated council did not satisfy the political ambition of this class, who obtained little support from the French Canadian people. The objections of the latter arose from the working of the act itself. Difficulties had grown up in the administration of the law, chiefly in consequence of its being entrusted exclusively to men acquainted only with English jurisprudence, and not disposed to comply with the letter and intention of the imperial statute. As a matter of practice, French law was only followed as equity suggested; and the consequence was great legal confusion in the province. A question had also arisen as to the legality of the issue of writs of habeas corpus, and it was eventually necessary to pass an ordinance to remove all doubts on this important point. The Loyalist settlers on the St Lawrence and Niagara Rivers sent a petition in 1785 to the home government, praying for the establishment of a new district west of the River Beaudette “with the blessings of British laws and British government, and of exemption from French tenure of property.” While such matters were under the consideration of the imperial authorities, Sir Guy Carleton, once more governor-general of Canada, and lately raised to the peerage as Lord Dorchester, established, in 1788, five new districts for the express object of providing for the temporary government of the territory where the Loyalists had settled. These districts were known as Luneburg. Mecklenburg, Nassau and Hesse, in the western country, and Gaspé in the extreme east of the province of Quebec, where a small number of the same class of people had also found new homes. Townships, ranging from eighty to forty thousand acres each, were also surveyed within these districts and parcelled out with great liberality among the Loyalists. Magistrates were appointed to administer justice with the simplest possible machinery at a time when men trained in the law were not available.

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The grants of land made to the Loyalists and their children were large, and in later years a considerable portion passed into the hands of speculators who bought them up at nominal sums. It was in connection with these grants that the name of “United Empire Loyalists” originated. An order-in-council was passed on the 9th of November 1780, in accordance with the wish of Lord Dorchester “to put a mark of honour upon the families who had adhered to the unity of the empire and joined the royal standard in America before the treaty of separation in 1783.” Accordingly the names of all persons falling under this designation were to be recorded as far as possible, in order that “their posterity may be discriminated from future settlers in the parish lists and rolls of militia of their respective districts, and other public remembrances of the province.” The British cabinet, of which Mr. Pitt, the famous son of the Earl of Chatham, was first minister, now decided to divide the province of Quebec into two districts, with separate legislatures and governments. Lord Grenville, while in charge of the department of colonial affairs, wrote in 1789 to Lord Dorchester that the “general object of the plan is to assimilate the constitution of the province to that of Great Britain as nearly as the differences arising from the names of the people and from the present situation of the province will admit.” He also emphatically expressed the opinion that “a considerable degree of attention is due to the prejudices and habits of the French inhabitants, and every degree of caution should be used to continue to them the enjoyment of those civil and religious rights which were secured to them by the capitulation of the province, or have since been granted by the liberal and enlightened spirit of the British government.” When the bill for the formation of the two provinces of Upper Canada and Lower Canada came before the house of commons, Mr. Adam Lymburner, an influential merchant of Quebec, appeared at the Bar and ably opposed the separation “as dangerous in every point of view to British interests in America, and to the safety, tranquility and prosperity of the inhabitants of the province of Quebec.” He pressed the repeal of the Quebec act in its  entirety and the enactment of a perfectly new constitution “unclogged and unembarrassed with any laws prior to this period.” He professed to represent the views “of the most intelligent and respectable of the French Canadians”; but their antagonism was not directed against the Quebec act in itself, but against the administration of the law, influenced as this was by the opposition of the British

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people to the French civil code. Nor does it appear, as Mr. Lymburner asserted, that the western Loyalists were hostile to the formation of two distinct provinces. He represented simply the views of the English-speaking inhabitants of Lower Canada, who believed that the proposed division would place them in a very small minority in the legislature and, as the issue finally proved, at the mercy of the great majority of the French Canadian representatives, while on the other hand the formation of one large province extending from Gaspé to the head of the great lakes would ensure an English representation sufficiently formidable to lessen the danger of French Canadian domination. However, the British government seems to have been actuated by a sincere desire to do justice to the French Canadians and the Loyalists of the upper province at one and the same time. When introducing the bill in the house of commons on the 7th March, 1791, Mr. Pitt expressed the hope that “the division would remove the differences of opinion which had arisen between the old and new inhabitants, since each province would have the right of enacting laws desired in its own house of assembly.” He believed a division to be essential, as “otherwise he could not reconcile the clashing interests known to exist.” Mr. Burke was of opinion that “to attempt to amalgamate two populations composed of races of men diverse in language, laws and customs, was a complete absurdity”; and he consequently approved of the division. Mr. Fox, from whom Burke became alienated during this debate, looked at the question in an entirely different light and was strongly of opinion that “it was most desirable to see the French and English inhabitants coalesce into one body, and the different distinctions of people extinguished for ever.” The Constitutional act of 1791 established in each province a legislative council and assembly, with powers to make laws. The legislative council was to be appointed by the king for life; in Upper Canada it was to consist of not less than seven, and in Lower Canada of not less than fifteen members. The sovereign might, if he thought proper, annex hereditary titles of honour to the right of being summoned to the legislative council in either province – a provision which was never brought into operation. The whole number of members in the assembly of Upper Canada was not to be less than sixteen; in Lower Canada not less than fifty – to be chosen by a ­majority of votes in either case. The British parliament reserved to itself the right of levying and collecting customs – duties, for the

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regulation of navigation and commerce to be carried on between the two provinces, or between either of them and any other part of the British dominions or any foreign country. Parliament also reserved the power of directing the payment of these duties, but at the same time left the exclusive apportionment of all moneys levied in this way to the legislature, which could apply them to such public uses as it might deem expedient. The free exercise of the Roman Catholic religion was guaranteed permanently. The king was to have the right to set apart, for the use of the Protestant clergy in the colony, a seventh part of all uncleared crown lands. The governor might also be empowered to erect parsonages and endow them, and to present incumbents or ministers of the Church of England. The English criminal law was to obtain in both provinces. In the absence of Lord Dorchester in England, the duty devolved on Major-General Alured Clarke, as lieutenant-governor, to bring the Lower Canadian constitution into force by a proclamation on the 18th February 1791. On the 7th May, in the following year, the new province of Lower Canada was divided into fifty electoral districts, composed of twenty-one counties, the towns of Montreal and Quebec, and the boroughs of Three Rivers and William Henry (now Sorel). The elections to the assembly took place in June, and a legislative council of fifteen influential Canadians was appointed. The new legislature was convoked “for the dispatch of business” on the 17th December, in the same year, in an old stone building known as the Bishop’s Palace, which stood on a rocky eminence in the upper town of the old capital. […] The village of Newark was chosen as the capital of Upper Canada by Colonel (afterwards Major-General) Simcoe, the first lieutenantgovernor of the province. He had served with much distinction during the revolution as the commander of the Queen’s Rangers, some of whom had settled in the Niagara district. He was remarkable for his decision of character and for his ardent desire to establish the principles of British government in the new province. He was a sincere friend of the Loyalists, whose attachment to the crown he had had many opportunities of appreciating during his career in the rebellious colonies, and, consequently, was an uncompromising opponent of the new republic and of the people who were labouring to make it a success on the other side of the border. The new parliament met in a wooden building nearly completed on the sloping

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bank of the river, at a spot subsequently covered by a rampart of Fort George, which was constructed by Governor Simcoe on the surrender of Fort Niagara. A large boulder has been placed on the top of the rampart to mark the site of the humble parliament house of Upper Canada, which had to be eventually demolished to make place for new fortifications. The sittings of the first legislature were not unfrequently held under a large tent set up in front of the house, and having an interesting history of its own, since it had been carried around the world by the famous navigator, Captain Cook. As soon as Lieutenant-Governor Simcoe assumed the direction of the government, he issued a proclamation dividing the province of Upper Canada into nineteen counties, some of which were again divided into ridings for the purpose of electing the sixteen representatives to which the province was entitled under the act of 1791. One of the first acts of the legislature was to change the names of the divisions, proclaimed in 1788, to Eastern, Midland, Home, and Western Districts, which received additions in the course of years until they were entirely superseded by the county organisations. These districts were originally intended for judicial and legal purposes. The legislature met under these humble circumstances at Newark on the 17th September 1792. Chief Justice Osgoode was the speaker of the council, and Colonel John Macdonell, of Aberchalder, who had gallantly served in the royal forces during the revolution, was chosen presiding officer of the assembly. Besides him, there were eleven Loyalists among the sixteen members of the lower house. In the council of nine members there were also several Loyalists, the most prominent being the Honourable Richard Cartwright, the grandfather of the minister of trade and commerce in the Dominion ministry of 1896–1900. Section 2 – Twenty Years of Political Development (1792–1812) The political conditions of the two decades from 1792 until 1812, when war broke out between England and the United States, were for the greater part of the time quite free from political agitation, and the representatives of the people in both the provinces of Canada were mostly occupied with the consideration of measures of  purely provincial and local import. Nevertheless a year or two before the close of this period we can see in the province of Lower Canada premonitions of that irrepressible conflict between the two

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houses – one elected by the people and the other nominated by and under the influence of the crown – which eventually clogged the machinery of legislation. We can also see the beginnings of that strife of races which ultimately led to bloodshed and the suspension of the constitution given to Lower Canada in 1701. In 1806 Le Canadien, published in the special interest of “Nos ­institutions, notre langue, et nos lois,” commenced that career of bitter hostility to the government which steadily inflamed the antagonism between the races. The arrogance of the principal officials, who had the ear of the governor, and practically engrossed all the influence in the management of public affairs, alienated the French Canadians, who came to believe that they were regarded by the British as an inferior race. As a matter of fact, many of the British inhabitants themselves had no very cordial feelings towards the officials, whose social exclusiveness offended all who did not belong to their special “set.” In those days the principal officials were appointed by the colonial office and the governor-general and had little or no respect for the assembly, on which they depended in no wise for their continuance in office or their salaries. The French Canadians eventually made few distinctions among the British but looked on them as, generally speaking, enemies to their institutions. It was unfortunate, at a time when great discretion and good temper were so essential, that Sir James Craig should have been entrusted with the administration of the government of Lower Canada. The critical state of relations with the United States no doubt influenced his appointment, which, from a purely military point of view, was excellent. As it was, however, his qualities as a soldier were not called into requisition, while his want of political experience, his utter incapacity to understand the political conditions of the country, his supreme indifference to the wishes of the assembly, made his administration an egregious failure. Indeed it may be said that it was during his time that the seed was sown for the growth of that political and racial antagonism which led to the rebellion of 1837. It is not possible to exaggerate the importance of the consequences of his unjustifiable dismissal of Mr. Speaker Panet, and other prominent French Canadians, from the militia on the ground that they had an interest in the Canadien, or of his having followed up this very indiscreet act by the unwarrantable arrest of Mr. Bédard and some other persons, on the charge that they were the authors or publishers of what he declared to be treasonable writings. It is believed that the governor’s

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action was largely influenced by the statements and advice of Chief Justice Sewell, the head of the legislative council and the official class. Several persons were released when they expressed regret for the expression of any opinions considered extreme by the governor and his advisers, but Mr. Bédard remained in prison for a year rather than directly or indirectly admit that the governor had any justification for his arbitrary act. Sir James attempted to obtain the approval of the home government; but his agent, a Mr. Ryland, a man of ability and suavity, prominent always in the official life of the country, signally failed to obtain the endorsement of his master’s action. He was unable to secure a promise that the constitution of 1791 should be repealed, and the legislative council of the Quebec act again given the supremacy in the province. Mr. Bédard was released just before the governor left the country, with the declaration that “his detention had been a matter of precaution and not of punishment” – by no means a manly or graceful withdrawal from what was assuredly a most untenable position from the very first moment Mr. Bédard was thrown into prison. Sir James Craig left the province a disappointed man, and died in England a few months after his return, from the effects of an incurable disease to which he had been a victim for many years. He was hospitable, generous and charitable, but the qualities of a soldier dominated all his acts of civil government.

C h a p t e r V I I : A N e w Era of Colonial G ov e r n m e n t ( 1 839–1867) Section I – The Union of the Canadas and the Establishment of Responsible Government Lord Durham’s report on the affairs of British North America was presented to the British government on the 31st January 1839, and attracted an extraordinary amount of interest in England, where the two rebellions had at last awakened statesmen to the absolute necessity of providing an effective remedy for difficulties which had been pressing upon their attention for years, but had never been thoroughly understood until the appearance of this famous state paper. A legislative union of the two Canadas and the concession of responsible government were the two radical changes which stood out prominently in the report among minor suggestions in the direction of stable government. On the question of responsible government

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Lord Durham expressed opinions of the deepest political wisdom. He found it impossible “to understand how any English statesman could have ever imagined that representative and irresponsible government could be successfully combined … To suppose that such a system would work well there, implied a belief that the French Canadians have enjoyed representative institutions for half a century, without acquiring any of the characteristics of a free people; that Englishmen renounce every political opinion and feeling when they enter a colony, or that the spirit of Anglo-Saxon freedom is utterly changed and weakened among those who are transplanted across the Atlantic.” In June, 1839, Lord John Russell introduced a bill to reunite the two provinces, but it was allowed, after its second reading, to lie over for that session of parliament, in order that the matter might be fully considered in Canada. Mr. Poulett Thomson was appointed governorgeneral with the avowed object of carrying out the policy of the imperial government. Immediately after his arrival in Canada, in the autumn of 1839, the special council of Lower Canada and the legislature of Upper Canada passed addresses in favour of a union of the two provinces. These necessary preliminaries having been made, Lord John Russell, in the session of 1840, again brought forward “An act to reunite the provinces of Upper and Lower Canada, and for the government of Canada,” which was assented to on the 23rd of July, but did not come into effect until the 10th of February in the following year. The act provided for a legislative council of not less than twenty members, and for a legislative assembly in which each section of the united provinces would be represented by an equal number of members – that is to say, forty-two for each or eighty-four in all. The number of representatives allotted to each province could not be changed except with the concurrence of two-thirds of the members of each house. The members of the legislative council were appointed by the crown for life, and the members of the assembly were chosen by electors possessing a small property qualification. Members of both bodies were required to hold property to a certain amount. The assembly had a duration of four years, subject of course to be sooner dissolved by the governor-general. Provision was made for a consolidated ­revenue fund, on which the first charges were expenses of collection, management and receipt of revenues, interest of public debt,

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payment of the clergy, and civil list. The English language alone was to be used in the legislative records. All votes, resolutions or bills involving the expenditure of public money were to be first recommended by the governor-general. The first parliament of the United Canadas was opened on the 14th June 1841, in the city of Kingston, by the governor-general, who had been created Baron Sydenham of Sydenham and of Toronto. This session was the commencement of a series of parliaments which lasted until the confederation of all the provinces in 1867, and forcibly illustrated the capacity of the people of Canada to manage their internal affairs. For the moment, I propose to refer exclusively to those political conditions which brought about responsible government, and the removal of grievances which had so long perplexed the imperial state and distracted the whole of British North America. In Lord John Russell’s despatches of 1839, – the sequence of Lord Durham’s report – we can clearly see the doubt in the minds of the imperial authorities whether it was possible to work the system of responsible government on the basis of a governor directly responsible to the parent state, and at the same time acting under the advice of ministers who would be responsible to a colonial legislature. But the colonial secretary had obviously come to the opinion that it was necessary to make a radical change which would insure greater harmony between the executive and the popular bodies of the provinces. Her Majesty, he stated emphatically, “had no desire to maintain any system of policy among her North American subjects which opinion condemns”; and there was “no surer way of gaining the approbation of the Queen than by maintaining the harmony of the executive with the legislative authorities.” The new governor-general was expressly appointed to carry out this new policy. If he was extremely vain, at all events he was also astute, practical, and well able to gauge the public sentiment by which he should be guided at so critical a period of Canadian history. The evidence is clear that he was not individually in favour of responsible government, as it was understood by men like Mr. Baldwin or Mr. Howe, when he arrived in Canada. He believed that the council should be one “for the governor to consult and no more”; and voicing the doubts that existed in the minds of imperial statesmen, he added, the governor “cannot be responsible to the government at home” and also the legislature

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of the province; if it were so, “then all colonial government becomes impossible.” The governor, in his opinion, “must therefore be the minister [i.e., the colonial secretary], in which case he cannot be under control of men in the colony.” […] Lord Elgin was happily chosen to inaugurate a new era of colonial self-government. Gifted with a judicial mind and no ordinary amount of political sagacity, able to originate as well as carry out a statesmanlike policy, animated, like Lord Durham – whose daughter he had married – by a sincere desire to give full scope to the aspirations of the people for self-government, so far as compatible with the supremacy of the crown, possessed of eloquence which at once charmed and convinced, Lord Elgin was able to establish on sure foundations the principles of responsible government, and eventually to leave Canada with the conviction that no subsequent representative of the crown could again impair its efficient operation, and convulse the public mind, as Lord Metcalfe had done. On his arrival he gave his confidence to the Draper ministry, who were still in office; but shortly afterwards its ablest member was elevated to the bench, and Mr. Sherwood became attorney-general and head of a government, chiefly interesting now for the fact that one of its member was Mr. John Alexander Macdonald, who, on becoming a member of the assembly in 1844, had commenced a public career which made him one of the most notable figures in the history of the colonial empire of England. Parliament was dissolved, and the elections were held in January, 1848, when the government were defeated by a large majority and the second LaFontaine-Baldwin ministry was formed; a ministry conspicuous for the ability of its members, and the useful character of its legislation during the four years it remained in power. It is note­ worthy here that Lord Elgin did not follow the example of his predecessors and select the minister himself, but followed the strict constitutional usage of calling upon Mr. LaFontaine as a recognised leader of a party in parliament to form a government. It does not fall within the scope of this chapter to go into the merits of this great administration, whose coming into office may be considered the crowning of the principles adopted by Lord Elgin for the unreserved concession of responsible government, and never violated from that time forward by any government of Canada. […]

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Section 2 – Results of Self-Government from 1841 to 1864 The new colonial policy, adopted by the imperial government immediately after the presentation of Lord Durham’s report, had a remarkable effect upon the political and social development of the British North American provinces during the quarter of a century that elapsed between the union of the Canadas in 1841 and the federal union of 1867. In 1841 Mr. Harrison, provincial secretary of the upper province in the coalition government formed by Lord Sydenham, brought in a measure which laid the foundations of the elaborate system of municipal institutions which the Canadian provinces now enjoy. In 1843 Attorney-General LaFontaine presented a bill “for better serving the independence of the legislative assembly of this province,” which became law in 1844 and formed the basis of all subsequent legislation in Canada. The question of the clergy reserves continued for some years after the union to perplex politicians and harass governments. At last in 1854 the Hincks government was defeated by a combination of factions, and the Liberal-Conservative party was formed out of the union of the Conservatives and the moderate Reformers. Sir Allan MacNab was the leader of this coalition government, but the most influential member was Mr. John A. Macdonald, then attorney-­ general of Upper Canada, whose first important act was the settlement of the clergy reserves. Reform ministers had for years evaded the question, and it was now left to a government, largely composed of men who had been Tories in the early part of their political career, to yield to the force of public opinion and take it out of the arena of political agitation by means of legislation which handed over this property to the municipal corporations of the province for secular purposes, and at the same time made a small endowment for the protection of the clergy who had legal claims on the fund. The same government had also the honour of removing the old French seigniorial system, recognised to be incompatible with the modern condition of a country of free government, and injurious to the agricultural development of the province at large. The question was practically settled in 1854, when Mr. Drummond, then attorney-­ general for Lower Canada, brought in a bill providing for the appointment of a commission to ascertain the amount of compensation that could be fairly asked by the seigniors for the cession of their seigniorial rights. The seigniors, from first to last, received about a

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million of dollars, and it also became necessary to revise those old French laws which affected the land tenure of Lower Canada. Accordingly in 1856 Mr. George Cartier, attorney-general for Lower Canada in the Taché-Macdonald ministry, introduced the legislation necessary for the codification of the civil law. In 1857 Mr. Spence, postmaster-general in the same ministry, brought in a measure to organise the civil service, on whose character and ability so much depends in the working of parliamentary institutions. From that day to this the Canadian government has practically recognised the British principle of retaining public officers without reference to a change of political administration. Soon after the union the legislature obtained full control of the civil list and the post-office. The last tariff framed by the imperial parliament for British North America was mentioned in the speech at the opening of the Canadian legislature in 1842. In 1846 the British colonies in America were authorized by an imperial statute to reduce or repeal by their own legislation duties imposed by imperial acts upon foreign goods imported from foreign countries into the colonies in question. Canada soon availed herself of this privilege, which was granted to her as the logical sequence of the free-trade policy of Great Britain, and, from that time to the present, she has been enabled to legislate very freely with regard to her own commercial interests. In 1849 the imperial parliament repealed the navigation laws, and allowed the river St Lawrence to be used by vessels of all nations. With the repeal of laws, the continuance of which had seriously crippled Canadian trade after the adoption of free trade by England, the provinces gradually entered on a new career of industrial enterprise. No part of the constitution of 1840 gave greater offence to the French Canadian population than the clause restricting the use of the French language in the legislature. It was considered as a part of the policy, foreshadowed in Lord Durham’s report, to denationalise, if possible, the French Canadian province. The repeal of the clause, in 1848, was one evidence of the harmonious operation of the union, and of a better feeling between the two sections of the population. Still later, provision was made for the gradual establishment of an elective legislative council, so long and earnestly demanded by the old legislature of Lower Canada. The members of the LaFontaine-Baldwin government became the legislative executors of a troublesome legacy left to them by a

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Conservative ministry. In 1839 acts had been passed by the special council of Lower Canada and the legislature of Upper Canada to compensate the loyal inhabitants of those provinces for the loss they had sustained during the rebellions. In the first session of the union parliament the Upper Canadian act was amended, and money voted to reimburse all persons in Upper Canada whose property had been unnecessarily, or wantonly, destroyed by persons acting, or pretending to act, on behalf of the crown. An agitation then commenced for the application of the same principle to Lower Canada, and in 1845 commissioners were appointed by the Draper administration to inquire into the nature and value of the losses suffered by her Majesty’s loyal subjects in Lower Canada. When their report was presented in favour of certain claims the Draper ministry brought in some legislation on the subject, but went out of office before any action could be taken thereon. The LaFontaine-Baldwin government then determined to set the question at rest, and introduced legislation for the issue of debentures to the amount of $400,000 for the payment of losses sustained by persons who had not been convicted of, or charged with, high treason or other offences of a treasonable nature, or had been committed to the custody of the sheriff in the gaol of Montreal and subsequently transported to the island of Bermuda. Although the principle of this measure was fully justified by the action of the Tory Draper government, extreme Loyalists and even some Reformers of Upper Canada declaimed against it in the most violent terms, and a few persons even declared that they would prefer annexation to the United States to the payment of the rebels. The bill, however, passed the legislature by a large majority, and received the crown’s assent through Lord Elgin on the 25th April 1849. A large crowd immediately assembled around the parliament house – formerly the St Anne Market House – and insulted the governor-­general by opprobrious epithets, and by throwing missiles at him as he drove away to Monklands, his residence in the country. The government and members of the legislature appear to have been unconscious of the danger to which they were exposed until a  great crowd rushed into the building, which was immediately destroyed by fire with its fine collection of books and archives. A few days later, when the assembly, then temporarily housed in the hall of Bonsecours Market, attempted to present an address to Lord Elgin, he was in imminent danger of his life while on his way to the gov­ ernment house – then the old Château de Ramezay in Nôtre-Dame

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Street – and the consequences might have been most serious had he not evaded the mob on his return to Monklands. This disgraceful affair was a remarkable illustration not simply of the violence of faction, but largely of the discontent then so prevalent in Montreal and other industrial centres, on account of the commercial policy of Great Britain, which seriously crippled colonial trade and was the main cause of the creation of a small party which actually advocated for a short time annexation to the United States as preferable to the existing state of things. The result was the removal of the seat of government from Montreal, and the establishment of a nomadic system of government by which the legislature met alternately at Toronto and Quebec every five years until Ottawa was chosen by the Queen as a permanent political capital. Lord Elgin felt his position keenly, and offered his resignation to the imperial government, but they refused to entertain it, and his course as a constitutional governor under such trying circumstances was approved by parliament.

Not e   1 Excerpt from: John George Bourinot, Canada under British Rule, 1760– 1900 (Cambridge: Cambridge University Press, 1900), 37–49, 88–97, 165–73, 185–89.

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Canada’s History Class Thomas Chapais 1

F i r s t L e sson […] On September 8, 1760, at eight o’clock in the morning, Pierre de Rigaud de Vaudreuil de Cavagnial, Marquis de Vaudreuil and the last Governor of New France, signed the surrender in Montreal that brought French rule in our country to an end. The continuation of the heroic, five-year struggle, in hopeless conditions, had become impossible. The English commander-in-chief, Sir Jeffery Amherst, had surrounded the city, defended by a rotten timber stockade, with twenty thousand men, faced by barely two thousand four hundred soldiers. The said countries, lands, islands, places, coasts, and their ­inhabitants […] the Most Christian King cedes and makes over the whole to the said King, and to the Crown of Great Britain, and that in the most ample manner and form, without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. His Britannick Majesty, on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the Most

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Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, ­provided it be to the subjects of his Britannick Majesty, and bring away their effects as well as their persons, without being restrain­ed in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions: The term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty. Under the authority of this single Article in the Treaty of Paris, Canada became a British, rather than a French, colony. And these are the only stipulations concerning us that are contained in this famous diplomatic document. We will come back to this key text later. […] On October 7, 1763, the King issued a proclamation that would trigger numerous discussions and give rise to numerous legal dissertations. In it, he delimited the province and restricted its boundaries in a most unfortunate way. He appeared to announce the introduction of English laws into Canada. We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England. On November 21, 1763, General James Murray was appointed as Captain-General and Governor-in-Chief of the Province of Quebec, under a commission signed by the King. He was required to have the members of his council and all officers of justice to take the test oath. I know, Gentlemen, that you are not unaware of its nature, but since we are dealing with a topic in which precision is important, let us look at the exact scope of this infamous declaration. The Test Act (25 Car. II. c. 2, section 9) required all civil and military officials to swear as follows: “I do declare that I do believe that there is not any transubstantiation in the sacrament of the Lord’s Supper, or in the elements of the bread and wine, at or after the consecration thereof by any person whatsoever.”

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Obviously, Catholics could not make such a declaration without committing apostasy, and as a result they found themselves excluded from all public office. […] Let us summarize the Canadian situation following the Royal Proclamation of 1763. We had a civil government headed by the Governor General, who held all executive and administrative powers. To assist the Governor, a twelve-member council was created which, together with the Governor, could enact rules and regulations for the peace, order, and good government of the country. However, the council could not pass any measure affecting the life, limb or liberty of a subject, or impose any duty or tax. The proclamation of October 7 opened the way for the introduction of English law. The Governor’s commission, dated November 21, gave him the power to establish courts for the administration of justice, and instructed him to require that the members of the council and judicial officers swear the test oath. Last, the King’s instructions to the Governor, dated December 7, contained this redoubtable phrase: “You are not to admit of any Ecclesiastical Jurisdiction of the See of Rome, or any other foreign Ecclesiastical Jurisdiction whatsoever in the Province under your Government.” In short, the nature of the civil government was such as to instil deep regret for the loss of military rule. It called our French laws into question; it blocked our access to administrative and judicial office; and, although the Governor’s instructions were not public, it soon became clear that an essential condition for the free exercise of the Catholic religion was threatened. This was the situation into which we were thrown when General Murray published his commission of “Governor-in-Chief in and over Our Province of Quebec in America,” the date on which the new rule commenced. On August 13, 1764, Murray appointed the members of his Council, which was made up solely of Protestants. Only one Canadian name appears, no doubt borne by some Huguenot descendant. As early as September, the Governor convened his new council in order to pass ordinances, principally for the purpose of establishing a court of King’s bench and a court of common pleas, and to appoint judges of the peace and bailiffs. These were clearly not provisional measures, and our government was taking a more ordered form. At this point, our forefathers must have realized that the English domination was set to continue. They had seen the “definitive” treaty

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of peace and friendship between His Britannick Majesty and the Most Christian King proclaimed with trumpet and drum. They knew that France had been vanquished, that its maritime might was but a memory, that its finances were in a parlous state, and that any thought of revenge was an illusion. They were, and would remain, English subjects. Doubtless they could enjoy the fruits of peace. At the same time, however, they found themselves ostracised in their own country and treated as suspects on the land won by their ancestors for civilization and the Gospel. They were presented with an unfamiliar legal system, one that could jeopardise their property and civil rights. They were struck with a capitis diminutio that was both insulting and unfair. And, last, they had been given to understand that a fatal blow was to be struck against their religion, by categorically refusing the episcopal succession. Was this not enough to shake the staunchest spirit and to bend the strongest will? How to escape from the dire fate planned for our race? Was not every avenue closed? […] How did the task [that faced our forefathers] appear to them at first, at the start of a regime that has been called, and that we will call, the period of “civil government”? In fact, they faced a double task, defined by two words: adaptation and resistance. After the signing and publication of the treaty under which the conquest was ratified by cession, and after the promulgation of the Royal Proclamation of October 7 and the commission of November 21, 1763, the Canadians must necessarily have been struck by two observations. One thing was dead: French rule; another thing was under threat of death: French nationality. French rule had had its time. Given the conditions prevailing in Europe after the Seven Years’ War, there was no hope of a resurrection. Our destiny had reached a turning-point. Providence, which governs events in accordance with a mysterious design, had decreed a change of sovereignty against which we could not protest. We had no choice but to bow to the inevitable, and to attempt to adapt to the new regime. Was this adaption a truly difficult step to take? No, Gentlemen, not if we scrutinize the reality of the situation. What did the government of the colony consist of under the French regime? We had a governor who was both a civil and a military leader, and whose powers were broad and far-reaching. We had an Intendant, who was in charge of policing, finance and justice. We had a Superior Council, which dealt with appeals from the lower

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courts, and which could also pass certain by-laws and ordinances. These were the main features of our political regime under French rule. And in fact, in practice, the switch of allegiance had very little impact on the form of government. Between the two systems of political organizations, French and English, there were few actual differences, few fundamental divisions. In the present, as in the past, we were governed by an absolute power. The English Governor, like his French counterpart, held in his hands all the administrative levers, and had a monopoly on power. The only difference was that he acted in practical terms as both Governor and Intendant, as had previously been the case under French rule in the early years of the Frontenac administration. As the absolute head of the colonial administration and sole holder of power in the colony, the English, like the French, Governor was accountable only to the mother country, the King’s ministers, and the King himself. Our ancestors had known no other form of government. Let us not forget, our ancient colonial regime was not based on freedom. And in our former mother country, another quarter-century would elapse before the first assault on absolute power. […] From the outset, the Canadians expressed their sincere loyalty. As soon as the peace treaty ceding the colony to England had been promulgated, the Canadians of Quebec addressed Murray in these terms: Here it is, this long awaited, heaven-sent peace, that not only has brought union and tranquility to the whole of Europe, but even to other parts of the world. By its publication among us, we are incorporated irrevocably into the body of subjects of the Crown of England. Such is the decree of the Supreme Being. It is incumbent upon us to comply with it, and to be as faithful subjects of our new monarch as we have been, or had to be, of the King of France. Oh! How could we not be so, after experiencing, as vanquished subjects, in the most marked manner, the sweetness, justice and moderation of His government, after the paternal goodness that He has had for us, arranging the payment of our notes and letters of change, the sole resource remaining to us after the misfortunes inflicted by the scourges of war, and after being treated as his old subjects? Why should we not have reason to hope? Accept, Sir, on this day marking the birth of your King, our sincere prayers that we make to heaven for the

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preservation of His person and of the royal family. Add to the goodness you have always shown us since you have been our Governor the goodness to transmit them to his Majesty’s throne. Assure him of our fidelity through our previous submission. You have been our consolation in our most critical and cruel hour; we hope to have you as our father and our governor. This address was signed by the principal citizens of the city, with the list of names including Taché, Amiot, Charest, Boisseau, Panet, Morin, Parent, Lemieux, Frémont, Boyer, Launière, Lemaître, Dumas, Riverin, etc. For our ancestors, adapting to the new sovereignty was not a true hardship or the main difficulty. The most arduous, painful and distressing problem was to yield to the regime imposed by events while resisting the changes that were its corollary – to become loyal British subjects, while remaining fundamentally, essentially and i­ ndefectibly French Canadian. To express sincere allegiance to a non-­Catholic power, while retaining intact the ancestral faith, and remaining faithful to the Church to which we owed the finest elements of our moral and social life, despite the obstacles and the opportunities to lapse. To be subjects of the English crown, to accept courageously and loyally the duties and obligations of our new condition, while retaining and defending everything that constituted our entity, our individuality, our ethnic physiognomy, without abdicating our national personality or letting our faith and our attachment to traditional worship be undermined. This was the problem facing our forefathers in 1764. Based on the official documents that we have just mentioned, they were aware of the peril and they rose up against its fearful imminence. English subjects! Such they would become, just as they would accept with sorrow, but deliberately and unreservedly, the providential decree. But to cease to be French and Catholic! Never! They would not renounce their dual origin. And they accepted the new conflict that was necessary to defend their position. They faced conflict on two levels. The first blow against the nationality of the Canadians was struck in 1764, with the virtual abrogation of French law. The first blow against their religious safety also came in 1764 with the interruption in episcopal succession. Immediately, the leaders and guiding lights of our race focused all their efforts on the defence of these two points. And the first two battles under English rule involved the survival of our old French law, which

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safeguarded property, the family, the whole social fabric, and the perpetuity of our catholic hierarchy, source of the priesthood and defender of the link between individual churches and the great universal church. This shows you, Gentlemen, how right we were to point out to you that the question of the political regime was but a minor concern for our forefathers following the conquest. The question could be dealt with later. Later, when our existence as a nation was no longer directly threatened, we were able to address problems of a different nature. When we had done what was necessary to save our nationality, we could begin a campaign to regain our freedom. […] This exclusive focus of all their energy on immediate problems was especially necessary in 1764. Our forefathers’ nationality and Church were both at stake. And since the religious question, closely tied to the national question, required the most immediate solution, since the Canadian church was at the time without a bishop, this is where the initial effort was made. […]

F i f t h L es son […] On December 13, 1773, Lord Dartmouth, Secretary of State for the Colonies, wrote to Lieutenant Governor Cramahé: “I have the Satisfaction to Acquaint you that the Affairs of Canada and the arrangements necessary for the adjustment of whatever regards the Civil Government of the Colony are now actually under the immediate Consideration of His Majesty’s Servants, and will probably be settled in a very short Time.” This time, the news was not premature. The Crown’s Ministers and legal officers were working on a Bill on Canadian affairs. […] The British Parliament was at that time the largest and most ­important political body in the world. Whatever the constitutional deficiencies of its composition, the shocking inequalities of its representation, and the weakness and errors of many of its members, on the whole it deserved admiration for the intellectual power, political science and oratorical magnificence that characterized its debates. The two chambers brought together the most illustrious figures of the English nation. The House of Lords gloried in the presence of Lord Chatham who, while no longer a great minister, had not ceased

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to be a grand and moving orator. By his side, marked out by their knowledge or eloquence, were Lord Mansfield, the celebrated jurisconsult, Lord Camden, his emulator and often his contradictor, the Duke of Richmond, as distinguished by talent as by birth, Lord Hillsborough, whose long official career gave him a particular authority, Lord Shelburne, an effective debater with recognized competence in foreign and commercial policy, and many others. The House of Commons, too, contained a host of talented men. The Prime Minister, Lord North, after several years in power, was clearly, despite the mistakes of his policies and the unfortunate results of his system, a parliamentarian of great value. His tact, his flexibility, his quick rejoinders and his knowledge of current affairs, especially in the field of finance, made him a redoubtable debater. He was surrounded by eminent colleagues, at whose forefront stood two men that we have encountered several times during these lessons, Wedderburn and Thurlow, one clear and persuasive, combining the charm of his imagination with the vigour of his logic, and the other supporting his elevated thoughts with quick and inspiring words. […] Sir George Savile enjoyed legitimate consideration for his knowledge and firm principles. However, the two leading lights in the opposition party were, without contest, Edmund Burke and Charles Fox. It is enough merely to pronounce these two names to bring back the glorious memory of a classic period of parliamentary eloquence. Fox, still young, and in fact only twenty-five in 1774, had already been a minister and had just left Lord North’s cabinet. He was to become one of the masters of the English debate. His strong and luminous manner of speaking, both captivating and warm, astonished and subjugated even those it did not win over. His chaotic private life, unusually, did not seem to harm the brilliance of his ability or the power of his actions. Edmund Burke, different in many ways, was an equally illustrious figure. With a speculative and imaginative mind and a passionate interest in the study and discussion of ideas, he combined written and spoken eloquence. His opinions could be questionable at times, but his arguments always appeared apt. Burke was one of the most eloquent parliamentarians and the greatest political writer of his century. Speaking about this brilliant period, Gibbon, the famous historian, wrote as follows in his memoirs:

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But I assisted at the debates of a free assembly; I listened to the attack and defence of eloquence and reason; I had a near prospect of the characters, views, and passions of the first men of the age. The cause of Government was ably vindicated by Lord North, a statesman of spotless integrity, a consummate master of debate, who could wield with equal dexterity the arms of reason and of ridicule. He was seated on the Treasury bench between his Attorney and Solicitor General, the two pillars of the law and state, magis pares quam similes; and the Minister might indulge in a short slumber, whilst he was upholden on either hand by the majestic sense of Thurlow and the skilful eloquence of Wedderburne. From the adverse side of the House an ardent and powerful position was supported by the lively declamation of Barré, the legal acuteness of Dunning, the profuse and philosophic fancy of Burke, and the argumentative vehemence of Fox, who in the conduct of a party approved himself equal to the conduct of an empire. By such men every operation of peace and war, every principle of justice or policy, every question of authority and freedom, was attacked and defended. […] The Bill tabled by Lord Dartmouth, the first of many imperial statutes relating to the constitution of our country, is generally known in our history as the “Quebec Act.” What was its nature, and what was its scope? As we saw in our first lesson, the period from 1764 to 1774 was characterized by a deplorable degree of uncertainty regarding several of the most serious problems that can affect a people: uncertainty about the extent and conditions of our religious freedom; uncertainty about the retention and conservation of our French law; uncertainty about our civic rights and the form that the government of the country would take. The aim of the Quebec Act was to put an end to the uncertainty and to define the situation more clearly. To this end it addressed three matters, religious, national and political. […] The Quebec Act contained no direct provision concerning the Catholic episcopate. The episcopate was a reality; over time it would produce all its natural effects, and receive its legitimate legal consecration at a later date. For the present, however, it remained a de facto

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arrangement, with no other guarantee than that provided by a broad interpretation of the promise of religious freedom contained in the treaty. Religious freedom was once again proclaimed in the Bill submitted to the British parliament. Section 5, which we have just read, stated “That his Majesty’s Subjects, professing the Religion of the Church of Rome of and in the said Province of Quebec, may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the King’s Supremacy.” […] The Quebec Act released the Catholic Canadians from a calumnious oath, the deceitful and oppressive formula [of the Test Oath]. From now on they could hold public office, they could sit as judges or as members of the council, they could be legislators and they could participate in the governing of their country without being forced into practical apostasy. Their horizon was broader and their future brighter. These twenty lines in an imperial statute contain the fertile seed from which our political freedom would one day spring. They create the potential for our glorious lineage of parliamentarians and constitutional heroes. And under their liberating force we can see emerge, with patriotic emotion we can greet from afar Panet and Taschereau, Bédard and Lotbinière, Bourdages and Papineau. As you can see, Gentlemen, the replacement of the oath of supremacy by a simple oath of allegiance was capital for more than one reason, and made possible all our ensuing political activity while, at the same time, completing our religious freedom. But this is not all that the Bill accomplished for us from a religious standpoint. It recognized a key element for the maintenance of our church by giving British legal sanction to tithes. […] But there was also the national question. In our previous lessons we analyzed the controversy concerning the system of laws that should prevail in the province. Would our French laws, closely linked to the upholding of our customs, mores and traditions, emerge victorious from the conflict? The Quebec Act gave us an eminently positive answer; sections 4 and 7 of the Bill provide ample evidence of this. The first of these two sections was intended to revoke and annul the infamous proclamation of October 7, 1763, along with the commissions of the governor and judges, and the orders relating to the

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civil government and the administration of justice passed since 1764. The details given in section 4 highlight its importance. And whereas the Provisions, made by the said Proclamation, in respect to the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province … have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof amounted, at the Conquest, to above sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada. The wording was significant. The proclamation supposed to have abolished French law was found to be incompatible with the situation in Canada, which was not an uninhabited country, but a province home to a large population professing the Catholic religion and possessing a constitution and laws adapted to its temperament and mores. As a result of this incompatibility, the Bill revoked the proclamation and annulled everything that had followed. Then, after clearing the ground, the Bill began the rebuilding process by re-establishing, to a large extent, the order that had prevailed before the proclamation. This was the object of section 8, which reads as follows: And be it further enacted by the Authority aforesaid, That all his Majesty’s Canadian Subjects within the Province of Quebec, the religious orders and Communities only excepted, may also hold and enjoy their Property and Possessions, together with all Customs and Usages relative thereto, and all other their Civil Rights, in as large, ample, and beneficial Manner as if the said Proclamation, Commissions, Ordinances, and other Acts and Instruments had not been made, and as may consist with their Allegiance to his Majesty, and Subjection to the Crown and Parliament of Great Britain; and that in all Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, as the Rule for the Decision of the

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same; and all Causes that shall hereafter be instituted in any of the Courts of Justice, to be appointed within and for the said Province by his Majesty, his Heirs and Successors, shall, with respect to such Property and Rights, be determined agreeably to the said Laws and Customs of Canada, until they shall be varied or altered by any Ordinances that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, or Commander in Chief, for the Time being, by and with the Advice and Consent of the Legislative Council of the same, to be appointed in Manner hereinafter mentioned. […] This section, as could be expected, provoked waves of protest in the House of Commons. The government’s adversaries inevitably claimed that it had made it impossible to make Canada an English country, and that in fact it was nurturing its French nationality. One opposition member, Sir John Cavendish, declared “For that reason, I should think it material not to give them directly their own law again; it keeps up that perpetual dependence upon their ancient laws and customs, which will ever make us a distinct people.” Burke, whose able mind was not immune from prejudice, and who made a cult of jury-based trials, which were abolished by the Bill in civil cases, spoke vehemently against section 8: “Two-thirds of the whole trading interest of Canada are going to be deprived of their liberties, and handed over to French law and French judicature.” […] It is hard to imagine why such appeals, in an English chamber, did not lead to an explosion of national sentiment that dealt a deathblow to the Bill. However, this did not happen. The ministerial party held its ground. Lord North was a wonderfully skilful leader, admirably supported by Wedderburn and Thurlow, who gave one of his finest speeches during the general debate. His eloquence reached new heights and mercilessly denounced the oppressive theories used to call for the abolition of our laws and customs. Speaking about the proclamation of October 7, 1763, he dared to say: Yet, if it is to be considered as creating an English constitution; if it is to be considered as importing English laws into a country already settled, and habitually governed by other laws, I take it to be an act of the grossest and absurdest and cruellest tyranny, that a conquering nation ever practised over a conquered

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country … My notion is, that it is a change of sovereignty … In order to make the acquisition either available or secure … you ought to change those laws only which relate to the French sovereignty, and in their place substitute laws which should relate to the new sovereign; but with respect to all other laws, all other customs and institutions whatever, which are indifferent to the state of subjects and sovereign, humanity, justice and wisdom equally advise you to leave them to the people just as they were. […] There remained the political question, namely the question of what form our government would take in the future. Would we have a legislature, complete with an elected assembly? We had not asked as much, first, because we feared that the manoeuvres of our adversaries would block all access; and, second, as we must acknowledge, because our attitude, shaped by our long acquaintance with a dif­ferent system under French rule, did not truly inspire this longing in us. The testimony given to House of Commons showed this unanimously. […] The solution adopted was as follows. Sections 12, 13, 14, 15 and 16 of the Bill provided for the creation of a legislative council with a maximum of twenty-three and a minimum of seventeen members, appointed by the King. The council was given the power to make ordinances for the peace, welfare and good government of the province, with the consent of the Governor, but not to raise taxes, except for purely municipal purposes. Ordinances had to be transmitted to the King within six months of being made, and could be disavowed. No ordinance touching religion, or inflicting a punishment greater than a fine or imprisonment for three months could come into force until it had received his Majesty’s Approbation. The legislative jurisdiction of the council could not be exercised at any meeting attended by less than a majority of the whole council, or at any time except between the first day of January and the first day of May, unless upon some urgent occasion, in which case every member resident at Quebec or within fifty miles thereof had to be personally summoned by the King’s representative. This was the form of government granted to the province of Quebec. The essential point for us, at this time, was to be able to participate. The doors of the new council were opened to us. No more confessional disqualification, no more odious exclusion! “A council for the province,” stated the Bill, “to consist of such persons resident there … as his Majesty … shall be

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pleased to appoint.” We were relieved of the capitis diminutio imposed on us since 1764. This was a victory. The members of the English committee of Quebec, who had made other demands, could well be disappointed, but we were not. They protested, and in the House of Commons these provisions were violently criticized. Fox stated that they established an arbitrary power. Burke denounced them as instituting despotism and slavery. But these diatribes foundered against the ministerial rock, and the section instituting the council was passed by a vote of eighty-three to forty-three. In this study of the main sections of the Bill we have set aside those concerning the extension of the province’s boundaries, which gave rise to considerable differences of opinion. Although important in terms of the future, they had no impact on the more pressing problems of the present. All that we need to mention here is that the Bill pushed back the boundaries of the Canadian colony set in the Royal Proclamation of 1763 by a considerable distance; it gave back to the province of Quebec Labrador, Anticosti Island and the Magdalene Islands; it extended its territory westwards to the Mississippi, and to the north as far as the lands of the Hudson’s Bay Company. Pennsylvania and Virginia were extremely hostile to this western extension, and a long debate on this topic took place in the House of Commons. […] This royal utterance was the climax of a memorable constitutional battle set in the English parliament that ended with a victory for our cause. Doubtless not everything in the Quebec Act was perfect. It bore the marks of the complex situation in which it was conceived, and of the difficult times in which it was born. But when one thinks of the strong currents of religious hatred, social prejudice, national rivalry and political wariness that had been diverted to ensure its passage, one cannot but hail it, despite its deficiencies, as a model of wisdom and justice. In the new direction that some mysterious providential decree had imparted to our destiny, it marked a date and reflected an ascension. In place of uncertainty and dependence on another’s whims, it set out a clear regime of law and order. We moved from the improvised to the defined. We were set free from precarious tolerance and took possession of a legal guarantee. For ten years we had been fighting against a small, but arrogant faction that hoped to dominate us through ostracism as the conqueror’s right. Adjudicating between this group, of English race and Protestant faith, and us, of French race and Catholic faith, the parliament of

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England, whatever its reasons and its intention, had ruled in our favour and proclaimed our rights. For the first time since 1760 it had legislated concerning our government and institutions. And this first imperial statute decreed, to a large extent, both our religious and our national emancipation. This was an immense step, and one which would have numerous propitious consequences. The Quebec Act was perhaps more beneficial by what it implied than by what it enacted. It removed our obligation regarding the oath of supremacy, which meant that Catholicism had the right to exist alongside the official Protestant religion. It granted Catholic parish priests the legal right to collect tithes, which meant, for better or for worse, that the Catholic church was recognized in Canada by the British state. It clearly re-established our old French civil law, because it was better adapted to our mindset, mores, customs and traditions, which pointed inevitably to the deduction that the survival of our mindset, mores, customs and traditions, the essential elements of our French nationality, was admitted. Yes, all of this was contained in essence in the Quebec Act! Beginning on June 22, 1774, we had a British charter that we could invoke and on which we could rely, and which could be used as the basis for future claims. […] No, the Quebec Act was the result mainly of the intrinsic strength of our demands, the doctrines and principles of natural law and of the law professed by the great English jurisconsults such as Yorke, Grey, Wedderburn, Thurlow and Mansfield, and the high position enjoyed by such people in political and parliamentary spheres. It resulted, also, from the persistent actions of a man who, of all the British officials, could claim most of the credit. This man was Carleton. For eight years he pleaded the cause of French laws and the suppression of confessional disqualification. His views were accepted and his advice followed. Our victory was his victory. And this is why he should never cease to figure in the first rank of those whose words and actions helped swing to our side the scales on which the destiny of the French-Canadian nationality was weighed. […]

S e v e n t h Lesson […] During this period another matter was also troubling Canadian opinion – the constitutional question. When the Quebec Act was

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passed, in 1774, the imperial government considered that there were serious grounds for not establishing a legislature at Quebec complete with a chamber elected by the people. The old subjects, in other words those of British origin, had for the most part protested energetically against the refusal to grant us an assembly. First, in the autumn of 1774, they requested the repeal of the Quebec Act shortly after its passage. Next, in April 1778, they resumed their attack by sending the government a petition in which they formally requested the “establishment of a free government through an assembly of representatives of the people.” The French Canadians initially stayed away from this movement. We have given the reasons for this in a previous lesson. Until 1774 we had fought to obtain what was of paramount importance for us, our religious freedom, the upholding of our national laws, and the abolition of the civil disqualification to which we were subject under English public law. These, for us, were the essential points. The Quebec Act, despite its imperfections, had ruled in our favour on these subjects of vital importance, and our leaders had accepted it with satisfaction and gratitude. For a relatively long period the attempts by the English faction to obtain the repeal of the legislation had seemed a matter of concern and suspicion. The first petitions of the English Canadians always called for a return to English laws, and our forefathers could not be expected to support this aim. However, the fundamental objection they had previously held towards the creation of a legislative assembly no longer prevailed. Between 1764 and 1774, the test oath had placed an insurmountable obstacle in front of the Canadians by barring in advance any access to the office of representative in a legislative assembly. Any assembly would have been composed solely of English and Protestant representatives, which was inadmissible. Since the passage of the Quebec Act, however, this fear was no longer founded. Confessional disqualification had been abolished. Clearly, if an assembly were constituted, Canadians of the Catholic faith would be eligible to sit in it. And, in addition, they would form a majority of the electorate, provided that the constitutional law that constituted the assembly did not negate all principles of justice. After a few years these considerations began to influence a large number of our compatriots, and the formerly unanimous attitude toward the constitutional question ceased to hold sway. […]

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F i r s t L e sson 2 […] Those among you who did me the honour of attending, last year, this course on the history of Canada will remember that we stopped just as a new constitution was about to emerge. Around 1789, the political regime established by the Quebec Act appeared to have reached the end of its life. The considerable growth of the population, the arrival of a highly active element – American loyalists, – the development of trade, the creation of districts along the upper St. Lawrence, the unprecedented participation by a large number of the new subjects in the actions taken by a majority of the old subjects, the campaign by several major colonial export firms with an interest in our affairs through their trade with Canada, and increasing pressure from the opposition members in the House of Commons, all of these circumstances and influences forced the British government to admit that a constitutional change would be opportune. And, as we saw, in the month of October 1789 the Minister for the Colonies informed Lord Dorchester that new legislation for the good government of the province of Quebec would be brought before parliament in the first days of the upcoming session. […] What were the major elements of this measure, intended to equip us with a constitution that would govern us for half a century? An examination of its provisions reveals three main points: (1) the retention of all the guarantees introduced by the Quebec Act; (2) the institution of an electoral and parliamentary regime; and (3), the division of Canada into two provinces. The first of these provisions was clearly of the utmost importance. The 1791 constitution represented political progress, but this progress would have been dearly bought had it cost us any of the rights recognized in the Quebec Act. Fortunately this was not the case, and it is essential to highlight this fact. The imperial statute of 1791 did not repeal the Quebec Act, but merely amended it by removing the sections concerning the legislature created in 1774. The first provision of the 1791 Act stated as follows: Whereas an Act was passed in the fourteenth Year of the Reign of his present Majesty … is in many Respects inapplicable to the present Condition and Circumstances of the said Province …

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so much of the said Act as in any Manner relates to the Appointment of a Council for the Affairs of the said Province of Quebec, or to the Power given by the said Act to the said Council, or to the major Part of them, to make Ordinances for the Peace, Welfare, and good Government of the said Province … is hereby repealed. This is all that was struck out. Only the sections dealing with the legislative council disappeared – the rest of the Quebec Act remained as it stood. In addition, section 33 of the 1791 Act provided formally for the continuation of all our existing laws: “all Laws, Statutes, and Ordinances, which shall be in force on the Day to be fixed … for the Commencement of this Act, within the said Provinces … shall remain and continue to be of the same Force, Authority, and Effect … as if this Act had not been made.” Nothing could be more explicit. You can see the consequence immediately. Since the Quebec Act was not repealed, except as concerned our legislative council, and since all our laws remained in force, subject only to their amendment or repeal by the new legislature, our laws and customs, in other words our old French civil law, received new ratification from the imperial powers. In addition, religious freedom and confessional equality continued to enjoy the safeguards enacted by the Quebec Act. This was a key point. What we obtained in 1774, we kept. We retained all the positions acquired in the national and religious structure. At the same time, we took a major step forward in the political order. The 1791 Act granted us an electoral and parliamentary regime. Section 2 reads as follows: [T]here shall be within each of the said Provinces respectively a Legislative Council, and an Assembly … in each of the said Provinces respectively his Majesty, his Heirs or Successors, shall have Power, during the Continuance of this Act, by and with the Advice and Consent of the Legislative Council and Assembly of such Provinces respectively, to make Laws for the Peace, Welfare, and good Government thereof such Laws not being repugnant to this Act; and that all such Laws, being passed by the Legislative Council and Assembly … and assented to by his Majesty … or assented to in his Majesty’s Name, by … the Governor, or Lieutenant Governor, of such Province … shall be,

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and the same are hereby declared to be, by virtue of and under the Authority of this Act, valid and binding to all Intents and Purposes whatever, within the Province in which the same shall have been so passed. The legislative assembly was to consist, for Upper Canada, of no fewer than seven members, and for Lower Canada, of no fewer than fifteen members, appointed for life, who were British subjects by birth, naturalization or the cession of Canada to England. A rather curious provision authorized the creation of a sort of colonial peer system. Section 6 of the Act stated that his Majesty could grant a hereditary right to be summoned to the legislative council, transmissible by line of descent, to any subject of the Crown who received by letters patent under the great seal any hereditary title of honour, rank, or dignity. This provision was strongly criticized and, despite being maintained by Pitt against all objections, remained inoperative. The appointment of the speaker of the upper chamber was a prerogative of the Governor. Concerning the legislative assembly, section 17 provides for a composition, in Lower Canada, of not fewer than fifty members. In the original Bill, this figure was thirty members. For Upper Canada, sixteen members were stipulated. Members had to be twenty-one years of age and British subjects by birth, naturalization or the cession of Canada to England. The Crown’s representative was authorized to divide the provinces into districts, counties or circles, and to declare the number of representatives to be chosen by each. In each county, Members were to be elected by a majority of votes of citizens aged twenty-one or over who were British subjects by birth, naturalization or the cession of Canada to England and who possessed lands or tenements in the county of a yearly value of forty shillings or more. In towns and townships, the Members were to be elected by a majority of votes cast by citizens with the same personal “qualifications” and possessing a house or land in the town or township of a yearly value of five pounds or more, or having been resident in the town or township for the space of twelve calendar months and having have paid one year’s rent at the rate of ten pounds sterling per annum, or more. The term of each legislature was set at four years. Section 30 of the Act gave the Governor the authority to assent to Bills in his Majesty’s name, or to reserve a Bill for a later decision by his Majesty.

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However, a Bill assented to by the Governor could be disallowed by the King within the next two years. All of these provisions opened up a new era for us. The first Canadian parliament was created. The British parliamentary regime with its three powers – Crown, upper chamber and lower chamber – was instituted. Perhaps even more importantly, the electoral regime, which we had never known, made its appearance in our political history. Alas! we know all about its perils, deficiencies and defects. But, alongside its flaws, it had advantages. For us, in particular, in the difficult situation in which the conquest had placed us, it was an instrument of preservation and victory. Starting in 1791, it conferred on us a strength that we had never before possessed. Invested with the right to elect our representatives to a public assembly, we simultaneously acquired a broad influence over the government of our country. We became a political force that now had to be taken into consideration. This electoral power was made even more important by the fact that it had, as a corollary, the third key provision of the 1791 Act, referred to previously, which was the division of the province that effectively separated us from the mass of English elements and assured us of a preponderant numerical advantage in our own section. The total population of Canada at this time was around 156,000 souls. The territory constituted as a separate province by the Act, under the name of Upper Canada, had a population of around 10,000, leaving a population in Lower Canada of 146,000. Although we have no official, precise figures, we believe that we can state without fear of contradiction that the English elements represented no more than 10,000 souls in this latter figure. With the electoral regime and the suffrage granted to all citizens who met certain qualifications, but with no distinction as to race or belief, you can see what an enormous influence, what a powerful means of action or opposition was placed in our hands by the 1791 Act. […] It was Lord Grenville who set out, in the House of Commons, the fundamental idea of the Bill. His words were also of great i­ mportance for us. The province of Canada stood in a different situation from that of other British possessions in America. It was not a colony

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planted, or originally conquered by this country, and to which the laws of Great Britain might be transported; but it was a ­province conquered from another nation, a colony already in possession of settled laws, much agriculture, and an extensive commerce … there had been particular circumstances, since the conclusion of the last peace, which had created a population in upper Canada of a different sort … From the circumstances of the inhabitants consisting of two classes, it was judged proper to divide the province into upper and lower Canada … It had been stated, that the French inhabitants of Canada were so much attached to the prejudices of the Canadians, to their customs, laws, and manners, as to prefer them to the laws of England. He thought such an attachment deserved a better name than that of prejudice. He conceived it was an attachment founded in reason, or in something better than reason; in the best feelings of the human heart. After passing each stage in the parliamentary process without harm, the Bill concerning the government of Quebec received royal assent on June 10, 1791. We had taken a new step towards our national rehabilitation. We had acquired new strength. We could see a new sphere of action open up before us. Doubtless many difficulties awaited in this regime that we were just about to enter. We would have our share, a large share of legislative power. In our efforts to bring each essential piece of legislation to its conclusion, we would sometimes encounter systematic inertia or longstanding hostility. But although we could not be sure of giving full play to our creative and reformative activity, we were certain that nothing could now overcome the resistance that had led to our preservation. Although we could not promise to bring all the right laws into being, we could swear that we would cause all wrong laws to abort. We became electors, we became eligible, we became participants in the parliamentary authority. From a majority without a voice and without any means of action, we were transformed into a speaking, active majority. We had acquired political virility. For all these reasons, the 1791 constitution could be welcomed as a form of progress and as a promise for the future. Translated by Benjamin Waterhouse

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Not e s   1 Excerpt from Thomas Chapais, Cours d’histoire du Canada de 1760 à 1791 Tome I (Quebec: Librairie Garneau, 1919), 11–16, 20–8, ­135–72, 233–35.   2 Excerpt from Chapais, Cours d’histoire du Canada de 1791 à 1814 Tome II (Quebec: Librairie Garneau, 1921), 1–19, 38–9.

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The History of Canada from Discovery to the Present Day François-Xavier Garneau 1

P r e l i m i n a ry R e m a r k s , Volumes I and II: E xc e r p ts […] If we consider the history of Canada as a whole, from Champlain to the present day, we see that it is divided into two major phases by the passage of the colony from French to English dominion. The former phase was characterized by the Canadians’2 wars with the Savages3 and the provinces that now form the United States; the latter by the political and parliamentary campaign for the Canadians’ national preservation, which is still ongoing. The difference in weapons between these two eras of struggles reveals the Canadians from two distinct points of view, but it is in relation to the latter that I find them most interesting. There is something both touching and noble about defending the nationality of one’s fathers, that sacred heritage that no people, no matter how degraded it may have been, has ever dared to repudiate publicly. Never has there been a greater or more saintly cause to inspire an elevated heart or to merit the compassion of generous men. While in earlier times war cast the Canadians’ courage in brilliant light, later political debates caused names to rise among them that posterity will respect: men whose talents, patriotism and eloquence are for us legitimate subjects of pride and worthy reasons for greathearted emulation. Men such as Papineau (Senior), the Bédards and the Stuarts went to the grave covered in public veneration, and

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have thus come to play the distinguished roles that their compa­ triots assigned them long ago, both in our history and in our remembrance. Owing to the very fact that Canada has been subject to great ups and downs that are not its fault but flow from the nature of its colonial dependency, progress has been made only through obstacles, social upheavals and complications that have increased the gap between the races, which have been pitted against each other by England, and by the hatred, prejudices, ignorance, and, sometimes, distance between the governors and the governed. Above all, the union of the Canadas, planned in 1822 and executed in 1839, was simply a means of hiding a great injustice behind a legal veil. England, which saw French Canadians only as unruly settlers, stained with disaffection and republicanism, forgot that their anxiety came only from their attachment to their institutions and customs, which were being threatened, sometimes openly, sometimes secretly, by the governors. Do not the abolition of their language and the restriction of their right to vote, designed to keep them, despite their number, in the minority and in subjection, only prove too well that neither the treaties nor the most solemn public policies have been able to protect them from the attacks on their rights? However, no matter what action is taken, destroying a people is not as easy as one might imagine, and what was facing the Canadians was, perhaps, more frightening than really dangerous. Nonetheless, the future makes men anxious, and they need to be reassured. It is for them that we will enter into the details to follow. The importance of the cause that we are defending shall be our excuse to the reader. Happy the historian who does not have the same task to perform for his homeland! The emigration from the British Isles, and the Act of Union of the Canadas that we have just mentioned, which was passed in violation of the Imperial Statutes of 1774 and 1791, are, without doubt, events that merit our most serious attention. However, are we really right to see in these events resolutions so feared by some of us and so desired by the enemies of the French-Canadian nation? We have more faith in the stability of a civilized society, and we believe in the future existence of this people, whose more or less distant annihilation is seen as an inevitable, imminent destiny. If I were to abandon myself, like some, to such dark thoughts, far from wanting to explore the events that signaled this nation’s birth and progress, and immersing myself

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in relating facts that honour it, I would have a voice for nothing but weeping on its grave. I would cover my head to not have to see my homeland in its last agonies, my race taking its final breath. No, I am a man of hope: no one will ever hear my voice predicting tragedy; a man of my country, no one will ever see me, out of fear or interest, gamble on its supposed ruin to abandon its cause. Yet, in reality, the existence of the Canadian people is no more uncertain today than it has been at any time in its history. Its destiny is to struggle unceasingly, sometimes against the barbarians covering America, sometimes against another race that, thrown onto this continent in greater numbers, has long acquired preponderance and no longer has anything to fear. However, who can say that these hardships have slowed its progress in any essential manner? It was during the struggle of which we have feared the direst outcome that it underwent its greatest expansion. In the 152 years of French domination, the population of Canada managed to attain only 80,000 souls, while in the 83 years under English domination, it has gone up to over 500,000, and the country has spread over the greatest area. We thus see that the fears of which we have just spoken are more chimerical than real. […] The eminent statesmen whose hands were on the tiller of Great Britain’s affairs after Canada was handed over in 1763 understood that the special situation of the Canadians in North America was a guarantee of their fidelity, and this foresight is only one proof of the wisdom that the Cabinet of this power has demonstrated on so many occasions. Giving themselves over to the painful reflections that their situation had to inspire after the lengthy bloody struggle in which they demonstrated so much devotion to France, the Canadians cast fearful eyes upon the future. Deserted by the richest and most educated of their compatriots, who, by abandoning the country, deprived them of the aide of their experience; weak in number and placed in an instant, so to speak, at the mercy of the populous English provinces against which they had resisted with such honour for a century and a half, they nonetheless did not despair. They submitted their wishes to the new government, demanding the rights that they had been guaranteed by the treaties. They argued with admirable tact that the very difference between their language and religion, and those of the neighbouring colonies would link them more closely to

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the British cause than to the colonial cause: they had foreseen the American Revolution. Chance has led to the discovery, in the archives of the provincial secretariat in Quebec City, of one of those reports written with great sense in which the author predicts things that were soon to come true. Speaking of the probable separation of North America from England, he observes that if there were between Canada and Great Britain no ancient ­reasons for ties and interests different from those that New England could, in the case of separation, offer Canada, Great Britain would no more be able to count on Canada than it can on New England. He asks whether it would be a paradox to add that the uniting of the entire continent of America, formed with the principle of absolute franchise, would prepare and finally bring about the time when Europe would have no colonies in America except for those that America was willing to leave it, for an expedition prepared in New England could be carried out against the West Indies before London had the first inkling of the plan. If there is a means of preventing, or at least delaying this ­revolution, it can only be by encouraging everything that can maintain diversity of opinions, language, customs and interests between Canada and New England.4 Great Britain, influenced by these reasons, which drew new strength from the events that were preparing overseas, was no longer torn between its prejudices and a policy so clearly dictated in favour of the interest of the Empire’s integrity. The language, laws and religion of the Canadians were preserved at the very time when it would have been comparatively easy to abolish all of them since Britain then owned half of all of America. It soon had reason to rejoice in having done so. Barely two years had passed since promulgation of the Act of 1774 when its former colonies were all in arms against its authority and engaged in vain attempts to take possession of Canada, which they claimed to have helped to conquer only for England’s interest and glory. The Canadians, called upon to defend their institutions and their laws, which had been guaranteed by the treaties and the very Act of  1774, which the Congress of the rebel provinces had clumsily

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declared “impolitic, unjust, cruel, as well as unconstitutional and most dangerous and destructive of American rights,” took the side of the flag of their new mother country, which thus benefited earlier than it had thought from the wisdom of its policy. That policy has since been validated by the Imperial Parliament on two solemn occasions: in 1791, when this province was granted a constitutional charter, and in 1828, when it was declared that “the Canadians of French extraction should in no degree be disturbed in the peaceful enjoyment of their religion, laws, and privileges, as secured to them by the British acts of Parliament.” While this policy, which had already saved Canada twice, was misunderstood and repudiated by the Act of Union, it is not improbable that events will bring people back to it and that it will be found that the Canadians, as they Anglicize, become nothing other than English. Nothing suggests that the future would be different from the past, and this return could be determined by the progress of the colonies that Great Britain still holds on this continent and by the prospects of a revolution similar to the one that led to the independence of the American Union. If it were otherwise, we would have to believe that the Cabinet in London has prejudged the issue of British domination in this part of the world, and that it sees it as definitively lost. However, we have to presume that it is very much abreast of the position of English interests, that it has already cast its eyes towards the future, as we can infer from a few passages in Lord Durham’s report on Canada, and that finally it desires the outcome that is the least prejudicial to the nation. Great Britain holds our fate in its hands, and depending on whether its conduct is just and enlightened, or narrow and tyrannical, these beautiful, vast provinces will form, when the time comes, an independent nation and a useful, faithful ally, or they will fall into the orbit of the powerful republic that seems destined to compete with England for control of the seas. This issue merits serious attention from statesmen in England and in the colonies. Many peoples have a stake in the outcome. In the above observations, we have expressed our views frankly and fearlessly on a topic that has to concern all Canadians in the exceptional situation in which they find themselves as a people. We have done this because we believe that our readers have the right to know our opinion in this respect. We have thus had to express our hopes, which we believe are well-founded because they flow from the

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most serious analysis of the historical facts of which we are going to unfurl the vibrant, fascinating tableau.

Chap t e r I I I   T h e U n i o n of the Two Canadas V o l u m e I V : E xcerpts Now, what was to result from this unexpected resistance, which was beaten down as soon as it arose? What the government had desired for so long: an opportunity to unite the two Canadas. While it had failed in 1822, the skilfulness of its policy had finally brought things to the desired point so as to ensure complete success. Mr. Papineau’s haste probably speeded things along, but the Colonial Office constantly moved in that direction, and for a farseeing eye, this tendency had to come to fruition, in other words, a shock in the more or less distant future, for it is natural to put up resistance before changing in nature or ceasing to exist. It is both a moral and a physical law. Lies do not replace truth without a struggle, and struggles in morals constitute what we call conscience. Despite their nice words, the ministers were not yet simple-minded enough to believe that what they were saying was being taken at face value, and they knew very well that the Canadians would oppose the real evil that they wanted to do to them under specious pretexts and a veil of the most advanced liberal maxims. The unrest that had just occurred in a country in which the annals had until then been pure of any revolt caused a sensation not only in England, but also in the United States and France. At the first news, measures were taken in England to send military reinforcements. In the United States, the government had difficulty controlling the people who arrived under MacKenzie’s flags, and who continued to worry Upper Canada all winter. In France, Canada was so deeply forgotten that people wondered what it was, but they finally remembered that they had had brothers there in former times. Eyes were turned in our direction, and a republican newspaper was already speaking of forming an auxiliary legion to come to our aid. […] The approbation given by the houses of Upper Canada and by Lower Canada’s special council fully reassured the ministry, which pushed the measure with all possible speed. The Commons adopted it almost without debate. Hume voted in favour, but O’Connell

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against. English was recognized as the only language of Parliament. The measure encountered greater opposition in the House of Lords, where Lord Gosford, the Duke of Wellington, and several other members voted against it and protested. Lord Ellenborough complained that the bill was based on a twofold error: undue distrust of the French population and undue trust in the population of British origin; that the changes to Lower Canada’s representation were unjust since their purpose was to indirectly further increase the disproportion between the representation of the English population and that of the French population … and that if there was a desire to deprive French Canadians of representative government it would be better to do so in an open, frank manner than to seek to establish a permanent system of government with a foundation that the entire world would agree was electoral fraud. In North America, it was not possible to impose on pure men a sham of representative government or to get them to believe that they had a minority of votes when they were in fact disenfranchised. He argued that it would be a union of the two provinces imposed on one out of distrust of its loyalty, without its consent and with conditions that it had to consider unjust, and accepted by the other in exchange for tax advantages and ­legislative superiority. […] The English aristocracy voted for the measure only reluctantly and because the merchant party asked it to, the latter having always had great influence over colonial policy. Upper Canada owed a million to the Baring family, and found itself on the verge of being unable to meet its obligations. The powerful family did everything it could to get Parliament to consent to the union in order to ensure the debt would be paid. Many merchants, capitalists and perhaps members of Parliament had vested interests in the measure. Faced with all these personal reasons, along with the national prejudices, the French Canadians’ cause had to fail. In the Act of Union, it was explicitly stipulated that once collection expenses had been paid, the first charge on Canada’s revenue fund would be the interest due on the public debt at the time of union. Payments to the clergy and the civil list came only later. When the Act of Union had been adopted by both houses and had received Royal sanction, an end was put to the Act of 1791, which had been passed to shield the French Canadians from domination

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by Upper Canada’s little English population but later revoked to put those same Canadians under the domination of English speakers, whose number had grown or was growing. At the time when this great injustice was being done to us, the country’s population, trade, agriculture and industry were making immense progress. The population, which we estimated at around 125,000 souls when the Constitution of 1791 was introduced, had increased fivefold. Political dissent had not prevented people from performing their duties with the usual zeal. In America, all of the colonizing countries’ systems, all theories are swept along by the way things move. Everything rests on immense foundations that are limited, so to speak, only by the borders of the continent itself. In Europe, the landowner is at the pinnacle of the social pyramid; in America, the landowner is where he should be for the happiness and peace of those who compose society: at the foundation. In 1844, when the census closest to the Union was performed, the population of Lower Canada was 691,000 souls, of which 524,000 were French Canadian, and 156,000 English and foreign; 578,000 were Catholic. There were 76,000 landowners and 113,000 houses, from which we can conclude that every family had a house and almost every family was a landowner. […] Conclusion We have told the history of a few French emigrants who came to establish the destiny of their future generations in the most northerly lands of North America. Detached like scattered leaves from a tree, the wind had blown them into a new world to be buffeted by a thousand storms, tempests of brutality, of greedy trading, of the decadence of an ancient monarchy, of foreign conquest. Barely a few thousand souls when the last of these disasters occurred, they should not hold too much of a grudge against their former motherland because the loss of the noble colony of Canada was one of the determining causes of the Revolution, and the whole world knows what vengeance that polite, proud nation took against all those who had a hand anywhere near the tiller of the state that abandoned us in time of danger. Despite all Canada’s hardships, a few hundred French settlers (we fear we would be exaggerating if we said a few thousand) had

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succeeded in reaching 60,000 souls, considered a very small number in Europe, by the time of the Conquest. Today, after 90 years, this number has grown to 700,000,5 and this tree has flourished on its own, without foreign help, in its own religious faith, in its own nationality. For 150 years, it has struggled against English colonies with populations 30 to 40 times its own without flinching, and the content of this history tells us how it has done its duty on the battlefield. Although it is not very wealthy or ostentatious, this people has shown that it has kept something of the great nation to which it owes its origin. Not allowing itself to be distracted by philosophers and rhetoricians on the rights of man and other theses that amuse people in large cities, since the Conquest it has founded its policies on its own self-preservation, the only basis for policy acceptable to a people. It was not large enough to claim to open a new way for societies, or to place itself at the head of any kind of a worldwide movement. It has closed its ranks, rallied all its children around it, and always feared losing a custom, thought or prejudice of its fathers despite the sarcasm of its neighbours. The result is that until now it has kept its religion and language, and, above all, it maintained a foot in North American England between 1775 and 1812. While the outcome may have initially looked somewhat dire to the republic of the United States, it may not have had the bad consequences that may have been feared. The Royal flag of England flying over the Citadelle of Quebec City forced the fledgling republic to be serious, to conduct itself prudently, to advance only gradually, and not to rush forward like a heedless colt in the wild. Consequently, the Republic of the United States has become great, powerful and an example for the world. Today, the Canadians are a farming people living in a harsh, unforgiving climate. As such, they do not have the elegant, ostentatious manners of the southern populations or the language that seems to  come from the mild, inexhaustible nature that is completely unknown in the upper latitudes of our globe. However, it has seriousness, character and perseverance. It has shown this since it has been in America, and we are persuaded that those who will read its history fairly and in good faith will admit that it has shown itself to be worthy of the two great nations the destinies to which its fate is linked and which continue to influence its future. Indeed, this could not have been otherwise unless the Canadians had rejected their origins. From Normandy, Brittany, Touraine and

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Poitiers, they are descendants of the noble race that followed William the Conqueror, and whose spirit then took root in England and made that little island one of the foremost nations of the world. They came from France, leader of European civilization since the fall of the Roman Empire, and always commanding respect, in both good and bad times. They came from France, which, under both Charlemagne and Napoleon, fearlessly led coalitions into colossal combats. They came above all from the grassroots of Normandy, Brittany and Angers, which the world will always respect for their boundless devotion to royalty and religion, and for their admirable courage, which will cover with eternal glory the flag they raised in the midst of the French Revolution. Let the Canadians be true to themselves, wise and persevering; let them never allow themselves to be carried away by the glitter of social and political novelty. They are not strong enough to take up a career in those areas. It is for great peoples to try out new theories. They can take liberties in their relatively spacious spheres. In our case, part of our strength comes from our traditions; let us not depart from them or change them but gradually. We will find in the history of our motherland, and in the history of England itself, good examples to follow. While England is powerful today, it has had to go through terrible upheavals: foreign conquests, religious wars and many other ordeals. We do not want to claim such a destiny; our wisdom and strong union will alleviate many of the difficulties of our situation, and, exciting the interest of other nations, will make our cause more saintly in their eyes.

V o l u m e I I I : E xcerpts […] The Canadians who had not left the army after the siege of Quebec abandoned it after the capitulation of Montréal, and soon the deepest peace reigned throughout the land. It would have been impossible to see that a bloody war had just occurred if so many parts of Canada had not still born the marks of ravage and ruin, especially the area of Quebec City, which had been occupied for two years by hostile armies, placed under siege twice, bombed and reduced to ashes, and was surrounded by land that had been used as the theatre for three battles. The habitants were ruined, but proud to have done their duty for their country to the end. They were dreaming only

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about retreating to their land to recover their losses. By isolating themselves as much as possible from the new government and retreating into their parish system, they seemed to want to devote themselves exclusively to farming. After having won their valuable conquest, the victors focussed on ways to maintain it. General Amherst first chose the troops that would remain to protect the country, and sent the rest to Europe or to former English colonies. Canada was treated like a barbarian nation with neither a legitimate government nor laws. It was divided into three districts corresponding to the three divisions under the French regime, and was subjected to purely military rule. General Murray was placed in charge of the district of Quebec City, and General Gage in charge of the Montréal district. Government of the Three Rivers district fell to Colonel Burton. These three leaders seem to have been independent from one another. General Amherst kept the title of Governor General for himself, and after having given his instructions to the district governors concerning reorganization of the country in accordance with the planned regime, he left for New York. […] However, the Canadians continued to believe, probably because they desired it, that France did not want to abandon them, and that it would ensure that peace would return to the colony. Their hope remained strong as they waited to hear the good news at any time, but their greatest desire met with disappointment. The treaty of 1763, which confirmed Great Britain’s possession of Canada, resulted in a new wave of emigration. Merchants, lawyers and jurists, former civil servants, in the end, most of the country’s notable families went to France after having sold or even abandoned property that is still today a subject of dispute among their descendants. In the cities there remained only a scattering of low-level employees, a few craftsmen, perhaps a lonely merchant or two and the religious corps. The emigration did not spread at all to the countryside, where the habitants were tied to the land. […] Those who remained in Canada had to hope, in line with the promise by their new mother country, that they would finally have a legitimate government. Even though, under the military regime, French case law was finally adopted and court decisions were made according to the laws and in the language of the land, the system

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could offer no lasting guarantees. Thus, in 1764, a radical new change occurred, but, far from reducing the burden weighing on this unfortunate country, it made it even more intolerable. Every day, the Canadians became more aware of the extent of the hardship of being subject to foreign control, and they saw the sacrifices that they had made were nothing in comparison with the moral suffering and humiliation that were being prepared for them and their descendants. First, England wanted to repudiate all that was French and even take from the old habitants the natural advantages that their country’s size offered their children’s future. It began by dismembering it. Labrador, from St. John River to Hudson’s Bay, along with the Anticosti and Magdalen Islands, etc., was to be appended to Newfoundland; St. John Island [Prince Edward Island], Cape Breton and Nova Scotia were sheared off. The Great Lakes lands were distributed in the same way among the various neighbouring colonies, and soon New Brunswick was also removed from Canada and given the name it now has today. From land, the proclamation by which these major changes were decreed moved to laws, and the King, on his own authority, while declaring that assemblies of people’s representatives would be convened as soon as the circumstances made it possible, abolished in a single stroke all of the ancient civil laws, which were so wise, welldefined, clear, and replaced them with those of England, a confused, vague, inconsistent heap of parliamentary acts and court decisions enveloped in complicated, barbarian forms that the administration of justice had still not been able to get rid of in England, despite the efforts of the land’s greatest legal experts. Moreover, this abolition was done to provide future British settlers in the new conquest with the protection and benefit of the laws of the Kingdom. Was this not a new attack on the Canadians if it is true that the homeland is not within a city’s borders, within the boundaries of a province, but in a people’s love, family ties, laws, customs and habits? No one in Great Britain raised a voice against this act of dispossession and tyranny. An established people was deprived of its laws for the benefit of immigrants who had not yet begun to arrive. Murray was at the same time appointed Governor General, replacing Lord Amherst, who had returned to Europe the preceding year, and who can be considered the first English Governor General of this country. Gage, Murray, Burton and then Haldimand, who had replaced Burton in 1763 in Three Rivers when the latter was

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promoted Governor of Montréal, had simply been carrying out Amherst’s orders. The new governor, in obedience to his instructions, immediately formed a council invested, along with him, with executive, legislative and judicial powers. It lacked only the right to impose taxes. This body was composed of eight members, but included only one local habitant, an obscure man with no influence, chosen to complete the number. Jealous, hateful exclusion had dictated England’s instructions, and this dire document contained the seed from which has grown the deep racial antipathy noted today in Canada by Lord Durham, antipathy that he has used as a pretext for preaching new persecution of French Canadians. […] While the Canadians welcomed the criminal laws of their new mother country, with which they were already a little familiar, and its commercial code, which was largely modeled on that of France, published under the great Colbert, they nonetheless rejected the new civil laws, and increasingly avoided from the courts that applied them. Soon, worries appeared in people’s minds; grumbling, at first low, then broke out in all social classes. Those who knew the Canadians, who had always been so obedient to the law, started to fear the consequences of this deep discontent when they saw them openly criticizing government acts and demonstrating unprecedented boldness. Although he was strict, General Murray was an honourable man with a sensitive, generous heart. He loved the Canadians, with their docile attitude to authority, like old soldiers, a habit most of them had learned from serving in the army, and he appreciated their courage in combat and their uncomplicated manners. Compassion born from the horrors of war also inclined him to empathize with them in their situation. Perhaps also memories of his own country, the misfortunes of those bellicose mountain men in Scotland, so loyal to their ancient princes, increased in him the feelings of humanity that generally do more honour to the warrior than to the politician, since most of the time the latter is reduced to exploiting the least reasonable popular prejudices. In order to calm people’s minds, General Murray issued, with the approval of his council, an order in the following November establishing that, in proceedings concerning land tenure, successions, etc. the laws in use under French domination would be employed. This was a return to legality, for, while England had the right to change the laws of Canada, it could do so only through an act passed by its Parliament.

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[…] The Council of State was in possession of all of these reports in 1773. For nine years, England had been searching everywhere for reasons that could justify in the eyes of nations and public conscience the abolition of the laws and perhaps the religion of a people to which it had made a guarantee not to do so. Indeed, we are not risking very much in saying that the justice and generosity of Lord Thurlow’s eloquent arguments would have been lost, and that Canada would have come under the domination of a handful of adventurers with a religion, language, laws and customs different from those of its long-established habitants if it had not been for the hostile attitude of the other English colonies, which were beginning to make Great Britain fear that it would lose all of America.6 England waited to make its final decision until 1774, when a peaceful solution to its difficulties seemed further away than ever. The revolution that saved American freedoms forced England to preserve the Canadians’ language, institutions and laws; in a word, England was forced to be fair to them in order to retain at least one province for itself in the New World. […] Yet, while the Protestant party was demanding the scepter of power for itself, and slavery for Catholics, the latter were not taking the situation passively. They constantly used all of the means at their disposal to try to destroy English prejudices against them, prejudices that England’s nationals in Canada were continually trying to intensify through their writings and speeches. They also had their eyes on everything that was going on in the neighbouring provinces. They were not lacking in men capable of forming a judicious appraisal of their situation and that of England’s interests in North America, as can be seen from the prophetic report mentioned at the beginning of this work, which explains with such strong logic England’s need, if it wanted to remain in Canada, to give the inhabitants of the country all of the privileges of free men, and to favour their religion instead of destroying it, even among the wealthy, through the underhanded, but infallible, means of exclusion; and that having the freedom to be Catholic could not be that of being Catholic but losing all that can tie men to their country. They held meetings and signed, in December 1773, a petition of which the principal passages were: In the year 1764, your Majesty thought fit to put an end to the military government of this province, and to establish a civil

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government in its stead. And from the instant of this change we began to feel the inconveniences which resulted from the introduction of the laws of England, which till then we had been wholly unacquainted with. Our former countrymen, who till that time had been permitted to settle our disputes without any expense to us, were thanked for their services, and dismissed; and the militia of the province, which had till then been proud of bearing that honourable name under your Majesty’s command, was laid aside. It is true indeed we were admitted to serve on juries; but at the same time we were given to understand, that there were certain obstacles that prevented our holding places under your Majesty’s government. We were also told that the laws of England were to take place in the province, which, though we presume them to be wisely suited to the regulation of the mother-country for which they were made, could not be blended and applied to our customs without totally overturning our fortunes and destroying our possessions […] Vouchsafe, most illustrious and gracious sovereign, to dissipate these fears and this uneasiness, by restoring to us our ancient laws, privileges, and customs, and to extend our province to its former boundaries. Vouchsafe to bestow your favours equally upon all your subjects in the province, without any distinction! […] We conclude by entreating your Majesty to grant us, in common with your other subjects, the rights and privileges of citizens of England. Then our fears will be removed, and we shall pass our lives in tranquility and happiness, and shall be always ready to sacrifice them for the glory of our prince and the good of our country.7 This request, which passed for the expression of the feelings of most Canadians, was however signed by only a very small number of the seigneurs and the urban bourgeois class and their followers, who could have had reasons to hope to be represented in the legislative body to be instituted in the country. There are also reasons to believe that the clergy shared the petitioners’ sentiments, though, as was its custom, if it submitted representations, it did so secretly. The people did not take any action, and there are no grounds to believe that the demands came from it. No public demonstrations occurred, and in showing its distrust, the people rightly presumed that it would obtain no concessions from England since the Whig (Liberal) Party in the British Parliament, to which it could have addressed itself, was the

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very one that was most strongly calling for the prohibition of all that was French in Canada, with the bare exception of religion. The people thus let the seigneurs and their friends do as they wished: the petitioners were at least asking for everything they would have asked for themselves, if not more. In addition, they had more chance of success since their cause had to excite some sympathy among the English Tories, who held power and formed the upper classes in England, and so could consider the seigneurs and their allies as their counterparts in the colony. Moreover, their language, marked with deep respect for the Throne, contrasted with that of their adversaries. They did not ask to dispossess anyone of his rights while invoking the holy name of freedom; they did not ask to proscribe an entire race of men because its religious beliefs were different from their own; they asked only to enjoy, along with the King’s other subjects, the rights and qualities conferred by that status. This request was accompanied by a brief in which the petitioners also asked for the right to hold civilian and military jobs, a right which Maszères, speaking on behalf of the English party, spoke strongly against. They also observed that Canada’s border, set along the 45th parallel, only 15 leagues from Montréal, made the country too narrow on that side and took the best land away from them; that the upper country, including Detroit and Michilimakinac all the way to the Mississippi, should be returned to Canada owing to the fur trade’s needs, and that the coast of Labrador should be returned for the fishing industry’s needs. They added that the colony, because of the curses and calamities of war, and the frequent fires it had suffered, was not yet able to pay its expenses and thus form a house of assembly; that a council with more members than there had been until then, composed of new and former subjects, would be much more appropriate … and, finally, that they hoped even more strongly that they would be accorded this grace since the new subjects owned over ten dozen seigneuries and nearly all of the cleared land. The declaration concerning the house of assembly was later invoked to accuse the Canadian signatories of holding narrow, interested points of view. However, seeing that it was impossible to obtain an elected chamber in which, contrary to the English constitution, Catholics could be admitted, the signatories wisely preferred to ensure the preservation of their religion and laws by asking the King to appoint a simple legislative council, rather than a popular

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chamber from which they would have been excluded and which would have been composed of declared enemies of their language and all their social institutions, in short, of men who, at that very time, wanted to exclude them from public positions, and who probably would have signalled the beginning of the electoral regime with the prohibition of all that is most dear and venerable to men: religion, laws and nationality. The Canadians’ demands were received appropriately under the circumstances in England with respect to America, and were used as the basis for the Act of 1774, which was indeed only part of a broader plan covering all of the English colonies on the continent, the growing power of which was becoming more and more frightening to England, and the recent peacetime attitude, which will be described briefly in the following chapter, revealed the real reasons for England’s policy concerning Canada. At the same time, to console those in favour of proscription for their defeat, Maszères wrote that he thought “the inhabitants of the province would be happier in 7 or 8 years under the government established by the Act of 1774 than under the influence of an assembly into which Papists would be admitted.”8 These words reveal more about him than anything we could say. […] The Minister submitted a fourth bill, the Act of 1774, to re-organize the government of Canada, which was then called the Province of Quebec. It was the complement to the general administration planned for America. The bill, which imposed an absolute government on the province, finally persuaded the former colonies of England’s covert plans against their freedom, judging from its retrograde policies since 1690. In their eyes, it was the most dangerous, threatening example. They raised an outcry and protested, especially against recognition of Catholicism as an established religion in Canada, most probably for political reasons, knowing England’s old prejudices against that religion, than out of conscience, since during their revolution they soon after gave Catholics citizenship rights. All the plans for governing Canada that had been proposed one after the other since 1763 are well known, as are the abortive attempts to execute some of them. We are also familiar with the investigations and numerous reports submitted on this important matter by the leading civil servants in the colony, by the Office of Trade and Plantations and by the officers of the Crown in England,

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and finally with the requests by the settlers themselves, both French and English, who wanted better government. It is also common knowledge that the English settlers asked to exclude Catholics from public employment and from serving in the houses of government, a demand, as we have seen, that was the cause of the struggle and rivalry between the races in this country, and which has only given greater vitality to French-Canadian nationalism. All of this evidence had been submitted to the Council of State for deliberation. In 1767, the House of Lords had declared that it was necessary to improve Canada’s system of government. The Office of Trade had even summoned Governor Carleton to provide it with his guidance and thoughts on the new approach he wanted to take. In 1764, the English government’s spirit was completely hostile to Canadians; in 1774, things had changed. Its prejudices had turned against the Americans and the colonial houses of assembly. Interest had triumphed over ignorance and emotion. Permanent abolition of Canada’s institutions would inevitably have had the effect of uniting the habitants with the discontented people in the other English colonies. This was known, and consequently resolution of the Canadian issue was delayed year after year until England found itself obliged to  deal with Massachusetts and other southern provinces. The re-­ establishment of French laws long depended on the outcome of the attempt to tax the colonies, the invincible opposition of which helped to persuade the ministry to listen to the Canadians’ complaints. By giving in to their wishes, it was serving its policy in two ways: it was securing the loyalty of the clergy and the nobility to England, and it was leading the people to recognize its supremacy with respect to taxation. Indeed, in the opinion of the Canadians, that recognition was a small price to pay for self-preservation and to begin sharing the political rights given to other English subjects, who wanted to exclude them. […] However, while the Quebec Act tended to reconcile the Canadians with England, the act that ordered the closure of the port of Boston fueled to the greatest degree the anger and indignation of the other colonies. The Boston assembly appointed one committee to call a general congress and another to give the people rules of conduct in the form of recommendations. The habitants were invited to stop using tea and other items from Great Britain until it had delivered  the justice that was being demanded. The Congress met in

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September in Philadelphia, and sat until October 26; 12 provinces, accounting for nearly 3 million men, were represented by their deputies. Canada and Georgia were the only English colonies on the continent that did not attend. The Congress began by issuing a declaration of the rights of man. It then adopted a number of resolutions in which it described in detail the colonies’ grievances, which included the Canada Act that the Imperial Parliament had just passed. The Act was said to establish the Catholic religion in the country, abolish the fair system of English laws and institute, given the difference in religion, laws and government, a form of tyranny extremely threatening to the freedoms of the neighbouring colonies, which had contributed their blood and money to its conquest. It unreasonably said that it was astonished “that a British Parliament should ever consent to establish a religion that has deluged [­England] in blood and dispersed bigotry, persecution, murder and rebellion through every part of the world.”9 Such words would have been only fanatical if those who said them had been serious; they were unreasonable and irresponsible in the mouths of men who were already thinking about inviting the Canadians to join their cause. The declaration concerning the Act of 1774 was thus very ill considered. It did nothing good for England and was in danger of losing Canada’s support for the cause of confederation. If the Congress had confined itself to protecting against what was unconstitutional in the Act, for example, against the establishment of a legislature appointed exclusively by the Crown, it would have achieved its goal. However, by declaring itself against French laws and Catholicism, it necessarily armed the Canadian people against it, and itself violated the rules of eternal justice on which it wanted to found its declaration of the rights of men. The Congress thus resolved to cease all trade relations with England. It then wrote three addresses, one to the King, one to the people of Great Britain to justify the attitude it had taken, and one to the Canadians, in which it expressed sentiments entirely in contradiction with those that it had just revealed in the resolutions ­concerning their religion and laws. It was seeking to show them all the advantages of a free constitution, and to prejudice them against the form of new government that they had just been given by saying that there was a great difference between the constitution that their parliament had imposed on them and the one they should have. It  invoked Montesquieu, a man of their race, to criticize the new

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constitution, urged them to join the other colonies to defend their common rights, begged them to enter into the social pact formed on the basis of the broad principles of equal freedom, and asked them to send delegates to the Congress planned for May 10, 1775. Seize the opportunity presented to you by Providence itself. You have been conquered into liberty, if you act as you ought. […] We are too well acquainted with the liberality of sentiment distinguishing your nation, to imagine, that difference of religion will prejudice you against a hearty amity with us. You know, that the transcendent nature of freedom elevates those, who unite in her cause, above all such low-minded infirmities. The Swiss Cantons furnish a memorable proof of this truth. Their union is composed of Roman Catholic and Protestant States, living in the utmost concord and peace with one another, and thereby enabled, ever since they bravely vindicated their freedom, to defy and defeat every tyrant that has invaded them. However, all of these debates ended up drawing England’s serious attention, and in 1788 or 1789, at the beginning of the great movement that was being prepared in France and elsewhere, the Imperial Parliament brought out the partisans of representative government’s petitions from the offices where they had been sleeping for four years, and made them the subject of its deliberations on the new requests that had just been submitted. Great discord still reigned in the land concerning the kind of government that should be established. However, in accordance with their habits, the newspapers remained almost completely silent on this matter, as on everything related to politics. Probably fearing that a decision unfavourable to their views and interest would flow from the 1786 request by London merchants, the Canadians of Quebec and Montreal who were opposed to the establishment of a house of assembly, submitted new petitions to Lord Dorchester, asking that French laws be preserved and the existing constitution be maintained. The following year, they submitted other requests, in which they made their case even more strongly against the introduction of English laws and an elective assembly. They said, “Our applications can be reduced to preserving our municipal laws, but that compliance with them be strict, that there be in the legislative council of our province a proportional number

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of loyal Canadian subjects.”10 In effect, in the 1784 petitions, they were already complaining that they enjoyed their laws only incompletely because two thirds of the council members were English so they thus had the majority and changed the laws to match their desires and interests. Canada’s Liberal Party, jointly with the English party, responded with counter-petitions. The division of Canada into two great, nearly equal parts was now distinct and clear-cut. One was in favour of a representative government, and the other against. On both sides there were many notable citizens and major landowners, but fewer in the Liberal Party than in the Conservative Party. […] As soon as Adam Lymburner, representative at the constitutional talks in London, learned that Canada’s affairs in Parliament had been adjourned until the next session, he informed the committees in Quebec City and Montreal, which immediately addressed Lord Dorchester to repeat to him that they were still demanding the Constitution be reformed. As keen as it was to comply with their wishes, the English government was however also resolved to take steps to bind the colonies to the mother country by invisible but mighty chains while giving them as much freedom as was compatible with the new system. The Constitutional Act of 1791 was based on this principle. After having examined Grenville’s draft legislation, Lord Dorchester sent it back with comments. When Parliament opened, the King called the houses’ attention to the state of the colony and the need to reorganize its government, and soon Pitt, Chancellor of the Exchequer, invited the Commons to adopt legislation to divide the Province of Quebec into two separate provinces, Upper and Lower Canada, and to give each an elected house. Pitt explained that: Feeling the importance of the subject, he should have been desirous of stating fully to the House the grounds and the principles on which he meant to proceed in forming a constitution for a valuable appendage to the British dominions, which, he trusted, would contribute to its future prosperity; but as it was not likely that there would be any opposition to bringing in a bill for this purpose, and as explanation would come with more propriety when the bill was before the House, he should state only in a few words the outlines of the plan, unless questions were

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asked, or explanation demanded in the first instance; in which case he was perfectly ready to go more into the detail, than appeared to him to be at present necessary. The intended bill, he said, consisted of such particulars, as were calculated with a view to promote the happiness and internal policy of the province, and to put an end to the differences of opinion, and growing competition, that had for some years existed in Canada, between the ancient inhabitants and the new settlers from England and from America, on several important points, and bring the government of the province, as near as the nature and situation of it would admit, to the British constitution. The first great object was, to divide the province into two parts, under the denominations of Upper and Lower Canada (the former for the English and American settlers, the latter for the Canadians), and to give a local legislature to both. This division, it was hoped, could be made, in such a manner, as to give each a great majority in their own particular part, although it could not be expected to draw a line of complete separation. Any inconveniences to be apprehended from ancient Canadians being included in the one, or British settlers in the other, would be remedied by the above-mentioned establishment. The means of carrying this into effect, would be to appoint a house of assembly, and a council in each, which would give them all the advantages of the British constitution. In the construction of the council it was intended, that the members should not be members during pleasure, but members for life; and that the descendants of such of them as should be honoured with hereditary titles, should have an hereditary right of sitting in such council. It was further proposed to annex the dignity of a member of council to every title of honour has might be conferred on the inhabitants of each province. At present, the Canadians were in possession of the criminal law of England, and the civil law in many respects, but not as to landed property; it was therefore intended, that landed property in Canada should rest on socage tenures. One other specific point meant to be provided for, was the extension of the right of the habeas corpus act to both provinces, which was at present enjoyed in Canada, under the authority of one of the ordinances of the province, and those ordinances held the force of law. It was intended to continue the laws now in force in Quebec, unless the assembly of each province chose to alter them. By these regulations, the

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complaints of all the petitions presented to the House would be remedied, as the inhabitants of Quebec would have an assembly, with the power of enacting what laws they pleased. They would consequently retain as much of the laws of England as they now had and chose to keep, and would have the means of introducing as much more as they might think convenient. – There was also another important point, for which the bill would make a separate provision; he meant the maintenance of the Protestant clergy in both provinces, for which purpose there was a clause in the bill for a permanent appropriation of certain portions of land; and such provisions for future grants of land within the said provinces respectively, as might best conduce to the same object, in proportion to the increase of their population and ­cultivation; and as in one of the provinces the majority of the inhabitants would be Roman Catholics, it was meant to provide that it shall not be lawful for his majesty, in future, to assent to grants of land for this purpose, under the sanction of the council and assembly of either division, without first submitting them to the consideration of the British parliament. – With regard to taxation, to avoid the occasion of a misunderstanding, similar to that which had formerly taken place, no taxes were meant to be imposed by the parliament respecting Canada, but such as might be necessary for the purposes of commercial regulation; and in that case, to avoid even the possibility of a cavil, the levying of such taxes, and their disposal, should be left entirely to the ­wisdom of their own legislature.11 Such are the plain, but memorable words by which the Prime Minister of Great Britain announced to Canadians, on behalf of his country, that their nationality, in line with the rights of peoples, would be respected, and that for greater security, Canada would be divided into two parts so that they would have untroubled enjoyment of their laws and institutions in their respective parts. How British good faith committed to such a solemn matter was kept by the Imperial government is what the events that followed will reveal. […] The King, whom of all the English showed the greatest sympathy for the Canadians, thought he should thank the two houses for adopting this legislation in his prorogation speech. The legislation gave Canada its fourth government in 31 years. Martial law from 1760 to 1763, military rule from 1763 to 1774,

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absolute civil government from 1774 to 1791, and finally tripartite elected government from 1792. Under the first three regimes, despite orders to the contrary, the country had no laws other than those of the whims of the courts, which became subjects of the greatest contempt, and the people went only from one form of tyranny to the next. As for the last regime, judgment has to be reserved: we have to see first how it will be put into practice and what effects it has, for experience alone can reveal its advantages and disadvantages, especially since success depends on the spirit in which it is complied with by each of the stakeholders: the colony and the mother country. In addition to the division of Canada into two provinces and the establishment of the property regimes and laws that were to be found in each, the new constitutional legislation provided that all public officials, beginning with the Governor, would remain appointed by the King and would continue to be removable at his will, that free exercise of the Catholic religion would be guaranteed, that tithes and the clergy’s customary rights would survive, and that Protestants would have to tithe in the same way for their ministers. The King would have the ability to assign to the support of the Anglican Church one-seventh of the Crown’s uncultivated land, and to appoint vicars and distribute the benefits of the Church of which he is the head. The freedom to dispose of one’s property was granted in an absolute manner, the English Criminal Code was maintained as a fundamental law, and in each province there would be instituted a legislative council that would be appointed by the King for life. In Lower Canada the legislative council was to be composed of at least 15 members, and in Upper Canada, 7. As well, there was to be a House of Commons composed of at least 50 members in Lower Canada and 16 in Upper Canada. Members of the House of Commons were to be elected by owners of immovable property worth two silver Louis per year in rural districts, by five Louis per year in the cities and by tenants in cities paying annual rent of ten Louis. Lawmaking was devolved onto those two bodies and the King or his representative, who formed the third branch of government and had a right to veto legislation passed by the two houses. Parliamentary terms were not to last longer than four years, and legislature had to be called at least once a year. Finally, all issues were to be decided by an absolute majority. An executive council appointed by the King was also established to advise the Governor and act as the court of appeal in civil cases.

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This is how the Constitutional Act was. Despite its many imperfections, some of which were fundamental, it provided a government in which the people was called upon to play a role, and a means through which the people could make its grievances known, though there was no provision that the executive absolutely had to provide redress. The new legislation came into effect on December 26, 1791, and in the month of May the following year, Lower Canada was divided into six urban electoral districts and 21 rural counties and electoral districts, each of which elected two members, except for three that had only the right to elect one. By ridiculous affectation that was not really in line with the spirit of the new constitution, most of the districts were given English names that the habitants could not pronounce. Since at the time Upper Canada was separated from Lower Canada, we will not follow its history: the purpose of the present work is to trace the history of the French-Canadian people, the annals of which expand or contract depending on whether the colonizing country’s policies expand or shrink its borders. At the time the constitutional government was introduced, the population of the two Canadas was probably around 135,000 souls, more than 10,000 of whom were in Upper Canada. The EnglishCanadian population accounted for more or less 15,000 people, and there were 1,569,818 arpents of land being farmed. In 1765, the population had been around 69,000 souls in addition to a little over 7000 Savages, and there had been 955,754 arpents of arable land divided into 110 parishes not counting those in the cities. The French-Canadian population had doubled in the 30 years since 1679, when it had been 9400. In 1720 it was 24,400, and in 1734, 37,200. It was only between 1734 and 1765 that the population did not double. This was owing both to the losses in the wars that filled most of that period and to emigration to France. The population had been only 60,000 in 1759. From 1763 it had begun rapid growth again. The official census in 1844 found there were 524,000 people, from which we can draw the conclusion that in 1900 the population will be over 2 million or equal to that of Holland today. Immigration in those last days of French domination simply filled the void left by Canadians who were departing for Louisiana and lands to the west, or who were perishing in war and while travelling. The fact that the population grew regularly through all sorts of governments, even under the incredible tyranny that weighed on the country from 1760 to 1792, a tyranny that was heavy less because

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of the roughness of the governors than because of England’s mad attempt to tear the habitants’ laws and institutions away from them and to exclude them from politics because of their religious beliefs, proves that, in America, governments reach only the surface. No matter what their efforts to shape the people according to plan, even to snuff out distinct, local nationalities, it suffices for the people to be isolated for a time, to close its ranks, to get as close as possible to the spirit of self-government, to maintain domestic peace and order, and the progressive movement will continue: right and reason will invariably obtain the triumph they deserve. Indeed, on this continent, the future is in the people’s hands; the people is a polyp each branch of which has the virtues of the whole, and in the end it comes to embrace in its wide arms the foreign bodies that want to trample and harm it. […] Let us stop here to cast a glance back to the past. We have come to the end of the eighteenth century and the introduction of the representative regime in the country. Great events have been occurring under our eyes since 1755. All the misfortunes that can strike a people have come together to burden the Canadians. War, famine, unparalleled devastation, conquest, civil and military despotism, deprivation of political rights, abolition of ancient institutions and laws: all of this has occurred simultaneously or one after the next in  our homeland in the space of half a century. One would have believed that the Canadian people, so young, so weak, numbering barely 66,000 souls in 1764 and in consequence still so fragile, would be broken, would have disappeared in the midst of the terrible long tempests raised by the most powerful nations in Europe and America, and that, like a vessel swallowed by the ocean’s waves, it would have left behind no trace. Yet, this has not happened. Abandoned, completely forgotten by its former mother country, for which its name perhaps inspires regrets, barely known to the rest of the other nations from which it has been able to attract neither influence nor compassion, it has fought alone against all of the attempts made against its existence, and it has continued to the surprise of its discouraged, beaten oppressors. Admirable for its perseverance, courage and resignation, it has never despaired even for a moment. Trusting in the religion of his fathers, revering the legacy of their laws, and cherishing the language the harmony of which struck his ears as he was born and which has served as a vehicle for the thought of most of the great

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modern geniuses, no Canadian born of a father and mother of this land has ever betrayed any of these three great symbols of his nationality: language, laws and religion. Always obedient to the rules of duty, no people with the same means has made more sacrifices or shown more courage and heroism in defending its country during war, has shown more respect for the law or greater attachment to its institutions during peace. We will not go back over the events of the war that ended with the Treaty of 1763: they are well enough known. We will simply summarize what we have reported on the events that followed, up to 1792. It is in this space of time that were hatched the causes and seeds of discord that have divided this unfortunate country. The change of government at the time of the Conquest led to a radical change in who held public positions. All of trade fell into the hands of the conquerors. The merchants and public servants, foreign to the old population amongst which they were, owing to their weak numbers, as if lost, gave each other a hand to survive. It was understood among them that the Canadians’ language, laws and customs would be destroyed because that was the best way to concentrate in their hands the domination and exploitation of that people, and it was indeed all the easier since the Canadians’ religion deprived them of political rights. The Proclamation of 1763 seemed to favour this plan, but when, in compliance with the provisions of that Act, there was an attempt to hold a colonial assembly and it became apparent that the Protestant Party was insisting on strict compliance with English law, according to which Catholics could neither vote nor be elected, the government was ashamed of placing legislative power in the hands of two or three hundred adventurers, most of whom were of dubious character, and backed away from carrying out its promise. The public officials obeyed in silence, but the merchants, more independent of authority, grumbled about such weakness. From that point, the union between the public servants and their fellow countrymen became less close: the former complied more and more strictly with the policy dictated by England, thereby becoming more moderate in appearance, while the latter became more violent in order to impose their views on England, where they always found support through their commercial relationships. However, the American Revolution made achieving their goal more difficult. The Act of 1774, adopted to bind the Canadians to the Empire, re-established the French laws, and, in terms of political rights,

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placed this people on the same footing as other English subjects. This Act was adopted despite the incredible effort made to prevent it from passing, and once it was adopted, it had the effect of dividing the Protestant population. The class of public servants found the new constitution admirable because it placed the power in its hands and most members of the legislative council performed public functions. In consequence, government officials were opposed to any changes, especially to the establishment of an elected house, since they feared losing their authority, privileges and immense patronage. The merchants, in contrast, wanted a representative government for the reasons that we have already described above. They were all the more jealous of the legislative council because a number of Canadians had been admitted into it and were thus in a position to defend the rights of their fellow countrymen. They continued to ask for a free constitution. They long thought that Catholics would not be able to take the Test Oath, and would therefore be excluded naturally from the houses, as they were in England. It was only after formal warnings of the ministers’ intentions that they abandoned their unjust pretentions, and were obliged to accept the Act of 1791 as a second-best solution, but with much grumbling. When the Act was being discussed, they still tried to defend their ideas in the Imperial parliament, where there was strong support for them, by attempting first to ensure the Test Oath was enforced as it was in England, then to have French laws abolished and the Catholic clergy deprived of its privileges and ancient rights, and finally to divide the eligibility to vote so as to give the majority to Protestants in the elected chamber, as they supposed that in the Upper House Protestants would have the majority also since the representatives would be appointed by the King. Beaten on all of these points, they had to accept the 1791 charter as it was proposed, and indeed it was not granted until after the Canadians’ request was received. By giving the majority to the Canadians in the elected house owing to their superior numbers, the Act of 1791 united the English population, in other words, the public officials and merchants, for a second time in a community of interest and sympathy: the officials kept a monopoly over jobs, the others over trade. Indeed, when their merchants had emigrated to France, the Canadians had lost almost everything along with those valuable men and their special knowledge and experience, which was needed to re-establish trade on new

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foundations in accordance with the different circumstances in which they found themselves. The re-united public officials and merchants formed, for a second time, a veritable faction to which the American Loyalists, chased from their country and arriving dispossessed of everything and broken hearted by their defeat, injected the energy of the hatred and emotion that were consuming them. The faction dared to try to prohibit use of the French language in the legislature by the very majority of the legislative assembly that spoke that language. While it did not succeed, it nonetheless managed to give itself despotic power through the law that suspended the habeas corpus act and authorized the executive council or three of its members to imprison people for political offences, and it had enough influence to ensure England rejected the provincial bill of 1799, which would have had the effect of giving the people the power to tax and to control the collection and use of public monies. It cried treason when the house adopted the legislation, which put public officials under its control by placing all civil expenditures within the colony’s budget, of which part was at the time paid by England. We will see in what follows how it used the suspension of habeas corpus to intimidate the house by imprisoning its members and by usurping authority, in contradiction with the spirit of the Constitution. From the first steps taken by the constitutional government, the men and the parties were clearly enough demarcated to make known their nature, tendencies and spirit. The English Party went from rebelling in 1775 because England did not allow it to have exclusive control over Canada, then seeing its hopes dashed by the Act of 1791, but finally lending its support to the government as a secondbest solution. However, it still played a very strong role: it still reigned in the executive and legislative councils, and in the public service. The Canadian Party dominated only in the legislative assembly, and it was soon in open opposition with the executive, which still remained in the hands of the same men, who had always been the secret or declared enemies of the ancient habitants. From this flowed the long quarrels that continue to fill our annals, despite the introduction of the electoral principle. They reveal the Canadians in a new manner. Intrepid and persevering on the battlefield during the war of the Conquest, and all the more attached to their institutions since there had been attempts to rob them of them until 1791, they

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were to show the same constancy under the new constitution, and also to distinguish themselves by their energy and by talents that had until then been unsuspected.

V o l u m e I V : E xcerpts […] The introduction of representative government is one of the most remarkable periods of our history. The 1791 constitution, as it was to be put into practice, was far from fair or perfect, but the portion of freedom that it introduced was sufficient to give rise to the staunch, energetic expression of the people’s needs and feelings. Opinion that had long been contained felt relieved when it finally saw an avenue, as narrow as it was, open before it so that it could be made known and be appraised abroad. However, the constitution promised much more than it was to deliver. One of its essential flaws was that it left two of the three branches of legislature in the control of the Colonial Office, which was, through this means, to find itself armed with two instruments that it would be able to manipulate as it wished while appearing to control only one. This capital defect was noticed only by a small number of men with experience in public affairs, who predicted the new system would fall in the more or less distant future. The general population, always slower to suspect reasons, ulterior motives and injustices, believed, in accordance with Pitt’s words, that Lower Canada would be theirs, that the legislation, in so far as it was not incompatible with England’s interests and supremacy, would be based on their sentiments and interests, in a word, that it would be the expression of the majority of the habitants. Vain illusion! Aside from the Canadian interest and England’s interest, there was what Lord Stanley has since called the “British interest,” in other words, the interest of the English portion of the population, which at the time included only a few hundred souls scattered across cities and districts located on the eastern borders of Canada, along the states of New Hampshire, Massachusetts and Maine. Most of them were of German or Dutch origin.12 They had moved to Canada during the American Revolution, which they had been fleeing. By keeping the power to appoint the legislative council, England had retained the means to give this little group of people power equal to that of the rest of the

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habitants, and thus to nullify the majority, in other words, to govern one group using the other. Under the new constitution, the King, or rather the Colonial Office, since in England only the Colonial Office knew what was going on in Canada, formed one branch, and the legislative council the second, but since it was appointed by the Crown, it necessarily had to be the creature of the executive, composed of men devoted to doing its will, sharing all of its attitudes, and always ready to act as a shield against the representatives of the people. Such was the way the Act of 1791 was put into practice from the beginning. The division of Canada into two parts to ensure its longstanding habitants could keep their customs and nationality, in accordance with Pitt’s intent, missed its goal and really gave the greatest weight to no one. As for the executive council itself, which was supposed to be in the image of the ministry in England, it was only a servile instrument in the hands of the governors, and this is what later led to the ruin of the new constitution. Indeed, who would keep harmony between the two houses if the Colonial Office did not want it? Everything depended on that will. Moreover, it controlled the executive council and the legislative council, the members of which it appointed. […] Until that time, the press, as we have already said, had maintained a deep silence, rarely interrupted by debates on domestic, political or religious issues. The silence was perhaps the fruit not so much of despotism as of the natural interest of those governing. Wielders of power, they possessed with it all of the advantages that it entails for individuals. However, the appearance of an independent newspaper proclaiming that it would defend the political rights of the Canadians and demanding for them all of the advantages of the Constitution frightened those who benefited from the patronage. They received the newspaper with very strong hostility. They tried to cast a French agent, Mr. Turreau, who was then in the United States, as the ­primary author. The Mercury said: It is an unquestionable fact that M. Turreau lately offered 900 dollars towards the establishment of a French paper in New York. Have we not then ground to be jealous when we see a prospectus of a new French newspaper in Quebec; when we

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learn that a second is in contemplation; and when we hear of a new printing office being about to be opened for the purpose? If these things, in these times, be not alarming, we must be insensible to every symptom of impending mischief. Few English are aware of the intrigues and cabals, at this moment, going ­forward in the midst of us. Despite the attempt to raise suspicions, the Canadien appeared in November 1806. Its prospectus said: It has already long been the case that people who love their country and their government regret that the rare treasure that we possess in our constitution has so long remained hidden: freedom of the press … The right that an English people has to express its feelings freely on all public actions by its government is what makes it the mainspring … It is this freedom that makes the English constitution so well-tailored to creating the happiness of peoples under its protection. All governments must have this goal, and perhaps all desire to achieve it, but not all have the means. A despot knows the people only through the portrait painted by courtesans, and has no counselors other than them. Under the Constitution of England, the people has the right to make itself known through the press, and through free expression of its feelings the entire nation becomes, in a way, the ­private counselor of the government. A chronically poorly informed despotic government is constantly in danger of clashing with the feelings and interests of the people, which it does not know, and of harming and abusing it without meaning to until it is too late to find a remedy. This is why governments are subject to such terrible revolutions. Under the English constitution, in which nothing is hidden and there is nothing to prevent the people from saying freely what they think and where the people thinks aloud, so to speak, it is impossible that such obstacles could arise, and this is what creates the ­astonishing strength of this constitution, which has never been attacked, when all those of Europe have been shaken, one after the next. The Canadians, like the newest subjects of the Empire, have the greatest interest in not being poorly represented.

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the history of canada from discovery to the present day 1 0 1

It was not so long ago that we saw them facing dark insinuations in a newspaper published in English, without having the freedom to respond. They have interest in dispelling prejudices, they have above all interest in erasing the bad impressions that the secret blows of malignancy could leave in the minds of England and the King himself. It has been made a crime to use their mother tongue to express their feelings and obtain justice, but the accusations frighten only the guilty. The sincere ­expression of loyalty is faithful in all tongues.13 Translated by Mary Baker

Not e s   1 Excerpt from François-Xavier Garneau, Histoire du Canada depuis sa ­découverte jusqu’à nos jours (Quebec: Imprimerie de N. Aubin, 1845), 26–39; Histoire du Canada (Quebec: Imprimerie de Fréchette et Frère, 1848), 296–308, 338–50, 362–81, 517–50; Histoire du Canada (Quebec: John Lovell, 1852), 7–9, 48–9, 285–318.   2 Translator’s note: In the first part of his work, the author uses Canadiens to refer to people of mostly French ancestry living in Canada, but later uses Canadiens français to distinguish those with French ancestry or ­heritage. I have followed his usage, and employed Canadians and French Canadians.   3 Translator’s note: The original text was published in 1845. I have tried to retain much of the terminology of the time, even though a modern author would certainly not use it. For example, Savages (not First Nations peoples), forefathers (not ancestors), men (not people), etc.   4 Our translation.   5 This year’s census places the French-Canadian population at 695,945 souls.   6 The pamphleteer Flemming said: “The government consulted ­governor Carleton as to the means of exciting the zealous cooperation of the ­leaders of the French Canadians, when he suggested the ­restoration of French laws.”   7 Translator’s note: This text was found online at http://www.clas.ufl.edu/ users/harlandj/readings/Quebec%20petition%201773.html.   8 Our translation.

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  9 Translator’s note: I was unable to get my hands on the original text. This version is a version cited here: http://citation.allacademic.com/meta/ p_mla_apa_research_citation/2/4/5/6/7/pages245675/p245675-5.php. 10 Our translation. 11 Translator’s note: This quotation comes from the 4 March 1791 transcription in Hansard’s Parliamentary Debates, vols. 28 and 29. Online at http:// english.republiquelibre.org/Debates_on_the_2nd_Quebec_Government_ Bill_%281791%29#Consideration_of_the_King.27s_Message. Please note that the official English version and Garneau’s version are slightly different. 12 A short view of the present state of the Eastern townships &c. by the Honorable and Reverend Chs. Stewart A.M., Minister of St. Armand, Lower Canada and Champlain to the Lord Bishop of Quebec City, 1815. 13 Our translation.

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The History of French Canada since Discovery Chanoine Lionel Groulx 1

B r i t i s h R u l e in Canada Overview One adventure was now over, another was about to begin – almost two further centuries of history to survey. Between the past and the new present, between French and British rule, we should not imagine anything like an artificial or absolute break. The same human society continued its life, on the same land, in the same geographic environment. One new fact, the English conquest, had altered the trajectory of life in French Canada. This catastrophe was part of the ongoing history of colonialism. After taking possession of their new worlds, the colonizing nations had quickly entered a period of rivalry. Canada bore the cost of one such rivalry, sharing the fate of Louisiana, the tiny Caribbean islands, and a few embryonic Spanish colonies around the southern and western edges of the North American continent; but it may be important to note that, among the major European colonies on the American continent, it alone paid the supreme price. What repercussions did this have on the course of history? I am referring not only to the history of French Canada in isolation, but also to the broader history whose effects it felt or that it, in turn, influenced: the history of North America, the history of England. Once France had disappeared, almost entirely, from the continent, the Anglo-American colonies still did not feel completely delivered from their French nightmare. As an imperial

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power, England had to deal with the problems created by its new status. Through its annexation of Scotland (under the covenant of 1707) and its even closer annexation of Ireland, it had already lost some of its ethnic and religious homogeneity. Its recent acquisitions following the Seven Years’ War had substantially varied the composition of its dependencies – with many inevitable repercussions on its domestic life and, to start with, on its colonial policy. The heaviest blows, obviously, threatened to fall on French Canada. “Conquest,” wrote an Anglo-Canadian historian, A.R.M. Lower – he was writing about 1760 – “is a type of slavery.” The word is important. A simple switch from one colonizing nation to another, a simple exchange of political, economic and cultural ties – if only for these reasons a conquest already introduces a dangerous disturbance into the life of a colonial people. But was 1760, which was all of this, also something much more? The Canadians saw a future full of unknowns opening up before them, as worrying, we might say, as the great unknown of the American continent had been for their forefathers. The first anxiety to trouble their minds: once peace had been achieved, what would France decide? Would it keep Canada, which had so often proved so important? Would England retain its conquest? And if so, what place, what treatment would Canada receive in the British fold? A people of 65,000 conquered souls is indeed tiny. But still, a people made formidable by its geographic position, the extent of its territory and an ethnic and social makeup so different from the rest of the empire. These are serious questions calling for serious answers. To gain a clearer view, why not attempt to predict history? Here we have a handful of settlers – ten or twelve thousand families abandoned in a remote corner of the Americas. What should we expect from this tiny people? Will it break, will it give way before a superior force? Who could blame it? It can disappear without a sound, and even without shame. How many adventures just as magnificent as the story of these French settlers have ended in just this way. But we have already mentioned the vigour of this people of pioneers, its impatience under any yoke, its passion for freedom. And we have just passed the date of 1760. Colonial history is speeding towards its last phase: the adulthood of its new young peoples. In America, strong winds are blowing across the continent and are already a cause for concern in the home countries. We can begin to discern the probability that French Canada will cling to its goal of survival and an

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energetic rejection of assimilation. But, in that case, how will events unfold? Suddenly history takes a new course and acquires a mantle of austere grandeur, of tragic beauty. But let us go further. In this life of resistance, of unceasing claims, would it be going too far to detect a dominant role played by the political factor? Let there be no misunderstanding. In the history unfolding before our eyes, we do not intend to give the political element, or factor, a more transcendent role than the one it actually played. A conquered people continues to live its habitual economic, social, cultural, moral and religious life as fully as possible. A people can only live its life on the condition that it lives it to the full. But to reject assimilation, to survive, what does this entail for a human group, if not to seize, to ensure a certain degree of governance over its life, and as a result to engage in a degree of political activity? We must also take into account the contingencies and environment in which the conquered people lived; the environment of the AngloAmerican colonies, made closer by the conquest, and where political arms were already being wielded vigorously; but also the environment in Britain, where the life of the entire nation depended on its parliamentary institutions. Given this context, what is so extraordinary in the fact that, to defend its being, and under a regime where public opinion was influential, the conquered people should seize the closest and most effective weapon? Let us first agree that it was not seeking political freedom as a goal in itself. But what could be more natural than to consider it to be the primary condition for all other freedoms, the only way to solve the overall problem of its existence? Are these just vain hypotheses? An imaginary prefiguration, an empty speculation? The facts are there to answer for themselves. What line clearly defines the history of Canada after the conquest? A line showing a constantly-developing political awareness. The line sometimes appears to hesitate, and sometimes advances swiftly; but it is straight and never deviates. This is where the vanquished people expended a large part of its energy. Starting as a colony under the authority of the crown, its development could only end as an autonomous Quebec in an independent Canada. And this is the key point in its new history: brought up under the tutelage of its former kings, with minimal involvement in its own government, the Canadian people had no choice but to give priority, at least tactically, to politics. From this point of view, it is an easy task to split the period of  British rule2 into its natural divisions. Two are immediately

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apparent: (1) Moving towards autonomy (1760–1848); (2) From autonomy to independence (1848–1931). The next task is to mark and define each subdivision or stage. Moving towards autonomy has three periods: 1st period: Provisional rule (1760–1764). An exceptional, or as it might be called, transitional period. A period of military occupation by a few detachments of the conquering army; a period of waiting for Europe to decide Canada’s fate; a period of reflection when militiamen, after returning home, could rebuild the country and salve the wounds of war. 2nd period: Rule as a Crown colony (1764–1791). After the Treaty of Paris (February 10, 1763), England’s first statement of policy concerning its conquest, came a policy of assimilation promulgated by the Royal Proclamation of October 7, 1763. As early as 1764, when the new regime was implemented, French Canada expressed its first and decisive reaction: an absolute rejection of the religious and cultural alienation proposed by the conquering force. Twenty-seven years of history can be separated into two periods: ten years of demands, both within Canada and in England; and then a positive response to those demands in the form of the Quebec Act of 1774: an astonishing piece of legislation enacted by the Parliament in London that repealed the Royal Proclamation of October 7, 1763, and in the process opened up significant breaches in the Kingdom’s fundamental laws. In summary, in 1774 the Canadians saw their French civil law maintained, with the reinstatement of the system governing property ownership and the social hierarchy. Their religious freedom was supported by new guarantees. Released from the obligation to swear anti-Papal oaths, the new subjects obtained legal access to public office: civil and political inequality between these new and the “old” British subjects theoretically ceased. In short, the Quebec Act recognized the right of a Catholic and French people to exist within the British Empire, a significant right at a time when, following the immigration of British settlers and American “loyalists,” the cohabitation of races would soon emerge as a problem. One freedom had not yet been obtained: political freedom, which would bring to an end the authoritarian regime of the Crown colony. This was the main focus of the next seventeen years. The incomplete implementation of the Quebec Act, an unusually vigorous historical synchronicity, and the confluence of powerful ideas from the American and French revolutions, together representing a series of influences brought together and reinforced in the Americas by

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the clumsy repression of colonial freedoms, eventually swept away an out-of-date regime. 3rd period: The Parliamentary Regime (1791–1848). Its first effect was to split Canada into two parts, Lower and Upper Canada (today’s Quebec and Ontario), one French and one English. It was greeted with enthusiasm and described as a copy of the regime in effect in Britain. In reality it was a disappointing hybrid: a crown colony maintained behind the mask of a parliamentary regime. The assembly had no true influence over the executive; supreme power remained in the hands of an autocratic governor with no political responsibility towards his colony, but only towards the imperial government. A parliamentary form that perhaps suited the oligarchic England of the 18th century, but was in complete contradiction to the democratic spirit of a younger continent. The outcome was not hard to predict. A continuous and growing level of agitation, in all provinces of British North America, but especially in French Lower Canada, whose freedom and lifestyle were both under threat. In 1837–38: bloody uprisings in both Canadas. In 1841: to smother the agitation, vague promises of autonomy from London, the forced union of the two Canadas, and an attempt to anglicise French Canada. An illusory policy. To bring together the reformers or liberals in the two most populous provinces was to double the strength of the colony’s claims in a dangerous way. In 1842, as a first step, and then in 1848, thanks to another historical convergence and the tenacity of French Canadian Louis-Hippolyte LaFontaine, a master planner as well as a statesman, the province of Canada obtained its autonomy – and, as a result, so did French Canada. One thing had become clear: there could be no stable or even viable government without the support of the French Canadians. A call went out to them “as a race and as a people.” In 1849 the French language became one of the official languages of the state, on an equal footing with English. From the outset, the unitary state founded by the 1841 regime was forced to function in practical terms as a federative state, giving back to each of its two provinces a part of their political personality. Second part: From autonomy to independence (1848–1931). Once again, two stages: the first from 1848 to Confederation (1867); and the second from Confederation to the Statute of Westminster (1931). The year 1848 brought autonomy from Britain. The degree of internal autonomy, in other words the autonomy of each of the two sections of the province, was soon considered to be insufficient

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in both Upper and Lower Canada. Despite evolving towards federalism, the institutions established in 1841 remained unitary: a single parliament legislated for both provinces. A congenital feeling of unease multiplied the misunderstandings and quarrels on both sides and led to the dissolution of the Union. A single solution was seen as advisable and acceptable for Lower Canada: a federation of the two provinces of British North America. As a result, in 1867, Lower Canada, now named Quebec, recovered the political individuality it had lost in 1791. For Quebec, the battle for autonomy appeared to have been won, for good. It now had to ensure its internal autonomy through economic, social and cultural means and then to defend its political and national autonomy against encroachments by the central power. And since the foundation of a greater Canada was followed by the dispersion of the French race from one ocean to the other, Quebec also had to protect the natural and constitutional rights of minorities of its own faith and culture against oppression by the English-speaking provinces. Last, and especially at the turn of the 20th century, it had to defend its autonomy and that of Canada as a whole against the resurgent forces of British imperialists. In this battle that led the country to independence, French Canada, through its essentially Canadian outlook, played a leading role. Despite the apparently political nature of this story, it will be important to pay attention to everything that influenced, and was influenced by, the political aspect. It is quite easy, in fact, to observe the reactions to each political gain in other areas of community life, and reciprocally the reactions of a more robust, more aware political conscience as new freedoms were conquered. This is the vital force that underlies the story and gives it its organic structure. It is also clear how the two regimes, the old and the new, came to resemble each other. As we have seen, the French regime was characterized by tragic fatality: a huge imbalance between individuals and their task; the task of a people required to build its own country and life with little or no assistance, encumbered by an empire and crushed by its weight – creating a history of extreme tension. After 1760, the same historical landscape, the same constant factors, the same obligation to live and think perilously. A similar imbalance between the people and their work: to build their lives, in even more total isolation, on a continent from which France had been expelled; to retain a remnant of Latinity in an English-speaking continent; and to survive as a Catholic and French-speaking people in a British empire that had become the world’s leading material and Protestant power.

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A destiny of unceasing toil and great risk, but one which rewarded the people for their efforts. This historical period, as I hardly need to assure you, I hope to describe in the same way as the first, from a purely objective standpoint, at least to the extent that this is possible for any historian of good faith. I do not intend to either hide or exaggerate the inevitable conflict between conquerors and conquered, between two cultures and two civilizations. This is not a statement made in vain, at a time when history has been forcibly enrolled in the service of a form of propaganda that remains foreign to its objectives and discipline. History can serve national unity; but it is not its role to work to that end. It lies outside, and above, such considerations. Strong, longlasting peace between nations cannot be founded on historical lies. Two races required to cohabit in the same country need to know what has gone on between them, if only to better realize and comprehend what each needs to forgive the other. […] 1763 Proclamation England’s response came in the form of the Royal Proclamation of October 7, 1763. It was described as “Royal,” but who was really behind what an English jurist of the period, Lord Mansfield, called the “imperial constitution of Canada”? Unlike the other Canadian constitutions that were to follow, the Proclamation was not the work of the British parliament. It came from the Board of Trade, a body of informants working for the Secretary of State, Lord Egremont. England at the time had only a disorganized colonial administration. Lord Egremont instructed the Board of Trade to prepare the document that would incorporate recent conquests in the Americas into the empire: Canada, Florida, the Grenadines, Dominica, Saint Vincent and Tobago. The disparate nature of these various colonies explains, at least in part, the clumsiness of the legislation. What was this Royal Proclamation, which was intended to bring to an end Canada’s “provisional” status and can be considered one of the founding texts of the English empire’s colonial policy? To fully comprehend its substance and spirit, a first precaution is necessary: not to separate it, in our analysis, from two other official documents that support and illuminate it, namely the Commission of James Murray, Canada’s first governor, and his Instructions. Nothing is

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then easier than to discern, with regard to the Canadian colony, four distinct parts or stipulations: a geographic reorganization; a reform of the legal system equivalent to a revolution; an unsettling program of religious policy; and the creation of a legislative and administrative body of a rather reactionary kind. For these reasons, this inaugural policy can best be described as a policy of upheaval. Total upheaval is an apt description, first, with regard to Canada’s geography. The former French empire was shredded. The country, now known as the “Government of Quebec” and the only one governed along European lines, shrank to a strip of land along the two banks of the St. Lawrence. […] Proclamation, Laws and the Church The geographic upheaval was only the first of many. It is important to note the comment by the historian Lower concerning the Conquest: “a type of slavery,” he writes, adding that “the whole life structure of the conquered is laid open to their masters.” This is an indication of the fatality governing the historical narrative. In Canada in 1763, one of the first fields invested was that of legislation. His Britannick Majesty, announced the Proclamation, intended to grant “all Persons inhabiting in or resorting to Our said Colonies … Our Royal Protection for the Enjoyment of the Benefit of the Laws of Our Realm of England.” As a result, all “Laws, Statutes and Ordinances” made by the future elected assemblies would be”as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies.” Immediately, and before any such laws were passed, this strict rule applied to the courts established “for Hearing and Determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England.” Murray’s commission reiterated the same points in almost identical language. The old laws in force in the country were categorically abolished. Imperial England was behaving like all the great conquerors, Rome, Alexander and soon, Napoleon: the law became, in their hands, a tool for unity. The statement of religious policy was just as radical and threatening. Historians have focused mainly on Article 33 of the Instructions to Governor Murray which sets out, as we know, a detailed plan for

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Protestantization through schooling and other means. How much more aggressive, though, was Article 32 of the same Instructions, which prohibited the Canadian church, in the most formal terms, from maintaining any ties with the papacy: “You are not to admit of any Ecclesiastical Jurisdiction of the See of Rome, or any other foreign Ecclesiastical Jurisdiction whatsoever in the Province under your Government.” […] Policy of 1764: Overview Now that it had truly become an imperial power, Great Britain attempted to define its colonial policy. Could it derive a measure of pride from its first attempt? No constitutional text had ever triggered as much discussion or disorder as the Royal Proclamation of 1763. What a source of litigation, for example, did the geographic dismemberment of the French empire prove to be! Some AngloAmerican colonies saw their territory increase considerably towards the north. However, the passionate struggles of all these colonies clearly show that their expansionist aims were in another direction, targeting possession of the Ohio and lands further west. How would these perpetually dissatisfied colonies react to the prohibition on any settlement west of the watershed of the rivers flowing into the Atlantic or the St. Lawrence? Another contentious issue was the political regime imposed on Canada. In terms of political freedom for the conquered people, the new regime was doubtless no worse than French rule. What had become, though, of the solemn declarations and promises of Amherst and Egremont to grant “the same privileges as the ancient subjects of the King”? In all parts of the administration, the Canadians were granted such a meagre portion by the conqueror that it was as if they were not to be trusted. They were treated, as Mr. Lower says, as “a second rate people.” In short, England attempted to govern the country by the always presumptuous method of placing leaders and civil servants who were not from the mass of the people. The 1763 Proclamation did not appear to provide any more satisfaction for the small group formed by the first British immigrants, since it had the unfortunate effect of placing the Canadian colony in a lesser situation, politically speaking, than the other neighbouring colonies. This was such a serious blunder that it raised the prospect of

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the inevitable consequences. London, which complained so bitterly of the demagogic spirit of the Plantation Assemblies, had thoughtlessly stirred up a source of agitation that would last for a century. At the same time, for the immediate future, what fertile ground it offered for American propaganda! It is important to remember that in 1774, the American Congress invoked the anti-libertarian character of this mode of government when it called on Canadians to revolt against England. No less fearsome were the threats to the laws and faith of the conquered people. All modern conquerors have remembered a Roman axiom – unify the law to unify the nation. Law is not an abstract notion – it is the expression, the incarnation of a state of mind and a social organization, and it becomes one of the forms of and a support for the national culture. Any sudden change in the law will, in fact, plunge a people into anarchy and disorder. These elementary truths were not, however, universally accepted by English jurists. Although Francis Masères, one of the first English lawyers to arrive in this country, was favourable to the conservation of the laws governing property, others were quite open to the idea of abolishing all laws contrary to the fundamental principles of government or to the political institutions or religion of the conquering state. The central government appeared to align itself with the latter camp, but were the possible consequences given adequate consideration? The cutting of ties to the West, a result of geographic reorganization, ended practically all French expansion to the “upstream” lands; it confined the people to farming the land within the boundaries of the seignories; it offered the possibility of consolidating the Canadian peasant class. But what would be the apparent advantage if, following the abolition of the laws governing peasant tenure, the legal framework and social hierarchy on which it was based also disappeared? In fact, the Proclamation undermined the existing tenure system and hierarchy even more effectively by introducing a rival form, allodial tenure, into Canada. The distribution of free land was planned for soldiers and officers disbanded from the English army and navy, and this could only result in the creation of a group of privileged settlers. The seigniors would no longer be the only holders and distributors of land, and only Canadian settlers would be bound to pay feudal dues. With respect to the faith of the Canadians, a single word sums up the peril of 1764: schism, for all practical purposes, with the church

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of Rome. It is not necessary to review the historical role played by Catholicism in Canada – we all remember what was created by the Ancient Faith and its fecund powers. It raised up and permeated the founding institutions, and became their soul. The colony owed its robust unity, the resilient strength of its popular conscience, and its philosophy of life to its faith. Catholicism was, as we have stated, Canada’s primary strength. It could also be said that the first line of defence of the French colony against the Anglo-Protestant offensive – its Lines of Torres Vedras – was constituted by its 110 parishes, a series of bastions aligned along the St. Lawrence. But these 110 social cells still needed an institution and a living principle, such as the link with Rome and the episcopate, to remain viable and unified. There is no need to call on the prophets to guess what possibly fatal role could have been played by a national and naturally servile church. Had the Canadians suspected Murray’s ambitious plans and his equivocal alliance with the infamous Roubaud for the widespread conversion of the country to Protestantism, there would have been no bounds to their anxiety. And there was another subject for alarm: the inflamed propaganda of the English churches for religious reform in the newly-conquered country, driven by none other than the Archbishop of Canterbury and disseminated in France in order to recruit French-speaking Huguenot priests. Everything appears to justify the comment by historian Taine: “The principal objective of a conquering state is the conquest of churches.” Let us not try to hide from the truth. History is not a rose-garden. This was a clearly delineated policy of assimilation. A civilization cannot outlast its vital principles, in other words the key ideas around which a human group forms. The assault of 1764 was undeniably directed against French Canada’s very soul. This was how Lord ­Durham saw it, when he later expressed his regret that the British government had not pursued in its path. F.R. Scott, who notes two attempts at assimilation in Canadian history by the “British ­Element,” places the first at the time of the 1763 Proclamation. A change in laws and institutions, he writes in Political Nationalism and Confederation, was seen as a way to gradually win over the new subjects “to the new British ways.” A.L. Burt, in The Old Province of Quebec, summarizes the intentions behind the Proclamation and Murray’s commission and instructions in an even more categorical formula: “An old French colony was to be remade into an English colony.”

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The Canadians were forced to make a decision: to be or not to be? Hamlet’s tragic question had become their own. What choice would they make? […]

Q u e b e c Act The Parliament at Westminster addressed the Canadian question in its 1774 session. Circumstances conspired to give the debate a particular solemnity. Some of the greatest orators of the classical period of parliamentary eloquence in Great Britain, including Fox, Lord North, Wedderburn and Edmund Burke, defended opposing positions. The empire was gripped by crisis and threatened by insurrection in the Anglo-American colonies. The Quebec Act was tabled on the eve of a general election and at the end of a tumultuous session. Parliament had just passed one Bill to repeal the constitution of Massachusetts, another to close the port of Boston, and a third to protect British civil servants employed to suppress the insurrection from the jurisdiction of the colonial courts in Massachusetts. Extraordinary Nature of the Quebec Act What exactly was contained in the fourth Bill, later to become the Quebec Act, which had as great an effect on public opinion as the three preceding Bills? Nothing less than a revision of England’s colonial policy. Every conquest exacts a payment, by introducing the potential for disturbance into the life of the conquering nation. The civilization of the conqueror erupts into that of the conquered nation – but the reverse is also true. England was made aware of this immediately following the events of 1764. The incorporation into the empire of a French colony with a population of around 100,000 souls suddenly presented it with a difficult problem. For ten years, the colony’s vigorous resistance to assimilation had created work for English jurists. England had originally believed it had established a uniform legal system in its American possessions from Florida to Labrador. Now, would it have to introduce deliberate breaches in order to exempt a mere colony from the imperial laws? In the religious field, was it now necessary to grant tolerance to colonials, until recently strangers to the British family, even though this involved granting official recognition to Catholicism in a corner of the empire,

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thereby giving these newcomers rights and privileges in the public arena that were still withheld from the kingdom’s own papist subjects? In short, was the British empire to cease being a closed system founded, as had been hoped, on a strict homogeneity of race, faith and law? Was it to become a composite entity of nations, drawn together by economic interest and allegiance to the crown alone? A  triple reform or revision that upset the prevailing mindset in England and would clearly challenge both English legal pride and Protestant feeling, not only in Great Britain but also in the ­colonies to the south and in Canada itself, where the British minority had not backed down since 1764 on the question of the law or the religious and political system. In the thirteen colonies, the future Declaration of Independence would upbraid the King “For abolishing the free  System of English Laws in a neighbouring Province.” The Philadelphia Congress demanded the repeal of an Act which, by establishing “the Roman Catholic religion” in Canada, had erected “a tyranny there, to the great danger (from so total a dissimilarity of religion, law and government) of the neighboring British colonies.” Nevertheless, the English parliament ignored these demands and objections and passed the Quebec Act on its second reading, by 105 votes to 29, despite protests from the citizenry of London and its city council. The Act received royal assent on June 22, 1774. This astonishing piece of legislation has, in fact, been described by one historian as one of the great historic texts of the modern British empire. What stands out in a quick analysis? First, something that the clear-sighted Canadians had demanded as early as 1767: the partial reconstitution of the former French America. Labrador, the Ohio-Mississippi triangle, the West, and a broad expanse around the Great Lakes, were all re-attached to the Province of Quebec; even the Indian “reserve” was recovered, as if it was necessary to seize it before a possible invasion from the insurgent colonies, or to erect against those colonies, as expressed by English-Canadian historian Duncan McArthur, the threat of a resuscitated New France. Second, and most importantly, the Quebec Act revoked the Royal Proclamation of 1763 and, with it, all the legislation enacted since the Conquest. It then re-established French civil law “in as large, ample and beneficial manner,” as stated in the Act. This signified, in the opinion of legal expert P-B. Mignault, the continuation of all French civil law in force in the colony prior to the cession of 1763. No less considerable were the concessions made in the religious

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field. The free exercise of the Catholic religion remained subject, at least in theory, to “the King’s supremacy,” and the Church saw its temporal subsistence assured through the right to receive tithes. In addition, Catholics were granted access to public office without a requirement to take an oath contrary to their beliefs. In terms of politics Canada remained, it is true, a crown colony. However, to appease the British element, the establishment of representative institutions in the near future was mentioned. The Council was enlarged, to a minimum of 17 and a maximum of 23 members. Who can deny the considerable benefits of this legislation for French Canada? It is impossible not to discern a providential influence, one of those historical occurrences where the intervention of the Almighty appears evident. Before, the way to the future had appeared closed, but a conjunction of unexpected events changed everything: the door swung open. Some contemporary observers of the Quebec Act considered it to be the “Great Charter” of French Canada. We do not find this description excessive. The Quebec Act did not, and in fact could not, annul all the effects of the Conquest. What legislative text could do that? A wide range of rights and autonomies remained to be won, depending only on the spirited actions of the conquered people. […] Analysis of the Quebec Act For the future of French Canada as a nation, what other key significance can be attached to the Quebec Act? It did not instigate FrenchCanadian nationalism, as Duncan McArthur claims. Did it provide it with a legal foundation? Until this point, the French factor in Canada could rely only on the terms of the capitulation documents, a form of recognition that went barely beyond the vague guarantees of natural law. The Quebec Act added, from the highest authority of the empire, a form of recognition based on constitutional law. Étienne Parent saw it as “a true social contract between ourselves and England … the consecration of our natural law.” The most recent AngloCanadian historians see it in a similar light. Burt, for example, writes in The Old Province of Quebec: “The Quebec Act embodied a new sovereign principle of the British Empire: the liberty of non English peoples to be themselves.” Only a little less explicitly, Edgar McInnis

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states, in Canada, A Political and Social History, “The act was a final abandonment of the effort at a uniform system of colonial government based on English institutions. Canada was accepted as a special problem to be dealt with in a special and separate way.” To make Quebec a French country: this was the key goal that appears to have inspired the British legislator, even to the point of restoring the geographic boundaries of the former empire. The Preamble to the Quebec Act makes this clear: because there was, in the West, “a very large Extent of Country, within which there were several Colonies and Settlements of the Subjects of France who claimed to remain therein”; because there were Islands in the Gulf and on the Labrador shore “where sedentary Fisheries had been established and carried on by the Subjects of France,” both regions were reattached to Canada. The historian can state as a fact that, from this point in time in 1774, the French Canadians alone had responsibility for implementing, for all time, their will to survive. Causes of the Quebec Act Where can we find the explanation for this piece of legislation, a truly exceptional monument in the history of the English parliament? In the historical context, as is clear to all. The Royal Proclamation of 1763 and the policy pursued in 1764 displayed a sovereign disregard for the natural vigour of the young country of Canada and the point it had reached in its evolution. The energetic reaction of the conquered people had surprised the assimilating power. In the view of Guy Carleton and Judge William Hey, “the impossibility of abrogating at once the Laws of a Country well cultivated and long settled, and substituting others in their stead, become soon very apparent.” The legal experts Grey and Yorke shared a similar opinion: “It is the more material that this policy be pursued in Canada; because it is a great and ancient Colony long settled and much Cultivated.” This admission can be seen again, interestingly enough, in the Preamble to the Quebec Act, by which the imperial parliament repealed the 1764 political regime for the specific ­reason that its institutions have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants

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whereof amounted, at the Conquest, to above sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years … Will this initial explanation be deemed insufficient, and unable to justify the exceptional exemptions granted by the imperial parliament to the fundamental laws of the kingdom, just as it cannot justify the challenge to public opinion in England and, above all, the challenge to the Anglo-American colonies that could only see, and only saw, the 1774 Act as one more coercive measure directed against them? If so, then we will point to two other factors or circumstances mentioned above: Canada’s geographic position, and the historical timing of the Quebec Act. One of these factors did not escape the attention of Lower, who wrote in his Colony to Nation: “The problem was not merely 60,000 new subjects, for the conquered people formed a strong society in a geographical habitat of crucial importance.” As for the historical timing, Carleton was careful to point it out to the British parliamentarians; in his view, it concerned the American peril and the danger of a new war with France. According to Duncan McArthur, the Quebec Act was drafted with one eye on events in Boston, rather than Quebec. And, in the words of Edgar McInnis, “It was thus imperative to strengthen the defenses of Canada and to rally the loyalty of the Canadians, and for the latter purpose it was absolutely essential to satisfy the French.” In addition, let us recognize the generosity of the English parliamentarians, even if parliaments do not habitually take risks through simple legal idealism. We should note, though, that the legal idealism that worked to the advantage of comparative strangers here in America failed to apply, in England, to the kingdom’s own subjects. Even if we find these causes insufficient to explain the unprecedented legislation of 1774, we cannot deny that it was a timely, as well as an intelligent and generous, gesture. The British empire, as we have mentioned, was waking up to a vital necessity. It had gained new possessions far from its own centre of gravity, and it had to ensure a solid foothold. In the already troubled American continent, its foothold was Canada. Any attempt to explain the Quebec Act that fails to consider this key ­reason can only be a superficial fantasy. […]

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The Quebec Act, a Source of Agitation The Quebec Act should have stabilized the province’s political life – but in fact it launched a new period of agitation. Daniel Halévy has written a short work, Essai sur l’accélération de l’histoire. Although there are some periods where the pace of history slows, at other times it appears to accelerate. The period we are about to study belongs to the second category, since the years 1774 to 1791 in Canada reflect an extraordinary effervescence. Where did this flow of ideas and passions come from? When examined closely, was the Quebec Act based on ideas that were novel and daring enough to meet the requirements of the evolving colonial world, which was being transformed at a rapid pace? The infamous “Charter,” as strange as it may seem, actually satisfied no one – certainly not the British immigrants from England or in the colonies to the south, who were used to democratic institutions that were more highly developed than those found in the “crown colony.” Their access to the new Council was circumscribed, with many seats made available for the Conservative friends of Guy Carleton. Were the Canadians any better endowed? Seigniors and clergy were happy to see a “Charter” for obvious reasons – but could the seigniors failed to have been disenchanted when they saw the small role they were assigned in the political organization? Once again the conqueror had refused to trust the majority. After appearing to want to maintain a French colony, why establish a government so unsuitable for that purpose, even though Carleton made room on his Council for many English-speakers who could be called sympathetic to the French? The regime continued the displeasing rein of a minority group, and the seigniors, along with the Canadian population, reacted strongly to this unjust anomaly. Following the peace of 1783, freedom of expression once again became authorized in the province, and a few petitioners did not hide from the King their “most earnest Desire to see in the Legislative Council of our Province a larger Number of Your New Catholic Subjects in proportion to their numbers,” in other words “nineteen twentieths of this Province.” In general, wrote Hugh Finlay in 1789, a Canadian seignior would express his thoughts as follows: “We have an undoubted claim to share all places of honor or profit in the service of Government in proportion to our numbers.” In 1785, the Lieutenant Governor Henry Hope accordingly proposed the appointment to the Council

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of “more than six Canadian Catholics.” What was the aim of this unusual policy? Carleton and the authors of the Quebec Act hoped to gain the support of the Canadian population with the assistance of the upper classes. Why, then, could they not see that by offering only crumbs from the table, they reduced the nobility in the eyes of the people and undermined their own plan? As a result, around 1784, anyone looking beyond the appearances to judge the 1774 solution could only consider it a clumsily executed policy that reflected a reactionary approach with little promise for the present or the future. Was it not, in fact, a constant flaw in all the constitutions prepared in Britain to lag behind political developments in the colonies? The Quebec Act, a reaction to recent events in America, was overly connected in British minds with the repression of colonial freedom. A mere shock from some major event, a mere spark setting ablaze the latent passions of an unstable world – who could not foresee the acceleration in history? […] The British Reformers To find the first and most ardent advocates of constitutional reform, we need look no further at this point than among the ranks of the British minority. As a political force, this minority was not a homogenous group, including as it did the “French party,” the reformers, and the loyalists. The “French party,” made up of the supporters of Carleton and the Quebec Act, had as its leader, at least virtually, the judge Adam Mabane. The party generally voted with the French minority at meetings of the Council and, politically, supported the status quo. The reformers, a group mostly made up of merchants, campaigned for the repeal of the Quebec Act and the establishment of representative institutions. Hostile to French law and seigniorial tenure, they maladroitly attempted to pursue political reform at the same time as legal and social reform, triggering the immediate opposition of most Canadian seigniors. They began the battle, we must remember, immediately following the Quebec Act and continued it  throughout the American Revolutionary War. The reformers received new impetus from the peace signed in 1783 – before them stood the new, young states of the south, independent, freed forever from the Navigation Acts and the colonial pact. The position of their

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own country appeared more intolerable than ever, inferior even to that of the British in Nova Scotia and New Brunswick, who acquired their representative institutions in 1758 and 1786 respectively. No argument was more often invoked with the British authorities, by reformers at all levels, than this inferiority of the province of Quebec, “as if unworthy to enjoy the privileges of British subjects.” In England there was a fashion of petitioning parliament for economic and constitutional reform, and the Canadian reformers took full advantage of this. An already long-standing coalition of commercial and financial interests ensured support from merchants in the City. Their most vigorous campaign, however, took place in Canada, initially before the Council and then, starting in 1784, among the Canadian people and a group of English speakers who had arrived as a result of the American revolution and among whom they hoped to find allies: the Loyalists. Who were these newcomers? Part of a major population displacement, one of the largest of the period: 41,000 fugitives, of whom 35,000 were absorbed by the smaller maritime provinces, while 6,000 found refuge in what was to become Lower and Upper Canada. Descendants of the dissidents who had founded the first Anglo-American colonies, these principled English-speakers were willing to sacrifice both their property and their new country to retain their British allegiance. As part of their baggage, they brought with them three unshakeable passions: an imperial sentiment nourished by hardship, a tenacious hatred for the France of Lafayette, Rochambeau and d’Estaing, the instigator of their exile, and an inviolable attachment to their dissident faith, largely based on antipapism. The reformers were quick to realize that they had little influence over these expatriates. The Loyalists saw themselves as the victims of the excessive nature of American democracy, and had little interest in self-government. In addition, their repugnance for French law and seigniorial tenure encouraged their spokesmen to put forward the idea of a separate province to the west, beyond the land under seigniorial control. This alone is enough to provide an indication of future events. […] A new step towards emancipation was taken. We will explain later what we think of the institutions of 1791. For now, let us look at the gains made, which appear considerable. At a theoretical level, the

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political value of the parliamentary regime is debatable. It was introduced into Canada at a time when, under the threat of the French revolution, almost all modern nations had given in to this form of Anglomania – with, as we know, doubtful consequences for Latin countries. As British subjects, did the Canadians have any other way to achieve emancipation? The new regime would betray many of its principles. However, in place of the small, closed and poorly representative chamber where national issues had been debated up to that point, the Act of 1791 introduced a more open parliament where the voice of the people could at last be heard. And was the division of the province not also something gained? A few Canadians, as we know, saw this in a poor light, and the British reformers went as far as the House of Commons to voice their opposition. The work in London had perhaps been performed with more skill than expected. The division of the province into Upper and Lower Canada gave Lower Canada jurisdiction over the entire area covered by the former seignories. How could this be seen except as the granting of geographic and political individuality to the land that would become Quebec and, at the same time, as recognition for the right of the French-Canadian population to a national home, the land base that completes the establishment of a country? Can we not state that the 1791 Act conferred on this small nation some of the legal aspects of statehood? To the clear meaning of the division of the province can be added the reasons given by the imperial parliament. Pitt the Younger stated, when he tabled the Bill, that his main objective was that the division of the province into Upper and Lower Canada … this division, he trusted, would be made in such as manner as to give each [English and American settlers, and the Canadians] a great majority in their own particular part … in Lower Canada, since the residents are mostly Canadian, their assembly … will be adapted to their customs and particularities. During the debate, Grenville and Burke both spoke in similar terms. For French Canada, was the Constitution Act, 1791 not a ratification and logical result of the Quebec Act? […]

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Responsible Regime or Institutions? At the start of this chapter, one question faces the historian – the same question posed following the Quebec Act. New Brunswick was given a parliamentary regime in 1786; the two Canadas, in 1791. This appears to mark a key step in the emancipation of the colonies. The division into two provinces of the former Government of Quebec gave Lower Canada several key advantages. It was saved from the perils of ethnic dualism, and saw its aspirations of becoming a national state confirmed. If this is the case, though, how can we explain that 1791, like 1774, ushered in an era of agitation that lasted almost half a century, not only in Lower Canada but also, to varying degrees, in all English provinces in North America? For a long time it was fashionable for historians to blame all these ills on the constitution, the Constitution Act of 1791. Maybe this simply reflects the all-too-common confusion between “regime” and “institutions,” and places too much importance on a political text issued by a country with an unwritten constitution, where the letter of the law counted for less than the customs or institutions that derived from it, which in turn determined the mechanism of the regime. The agitation during this period came more from an equivocal situation, from an overly-wide gap between hopes and implementation, between aspirations and political reality. […] Fear of American- or French-Style Democracy However, could anyone paying attention to certain comments by English statesmen and to contemporary events have remained entirely without concern? Let us go back to the birth of the parliamentary regime in the English provinces of North America following the treaty of 1783. What were the influences bearing on the imperial legislature? One topic haunts the speeches made at Westminster at the time: the demon of democracy, the first and main cause of the loss of the American colonies. This fateful fruit allegedly matured in colonial parliaments that had fallen prey to demagogy, lacking as they did the constitutional check provided by an aristocratic upper house and too loosely controlled by independent governors. Fox, an exalted member of the Whig party, agreed on this

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point with the younger Pitt, who took power after the election of 1783. Both ascribed the leading role in England’s political institutions to the House of Lords, the supreme regulator of the balance between the King and democracy. An official brief from the period, for example, concludes as follows: “And there seems to be no one point of more consequence, in this view, than the labouring to establish, in the remaining provinces, a respectable Aristocracy, as a support, & safe guard to the Monarchy, removed, as it is at so great a distance, & on that account, so much less powerful, in its weight, & influence upon the people at large.” Second, it is important to note that the parliamentary era began, in Canada, against the backdrop of the French revolution. The years 1790 and 1791 were precisely those during which, as Veuillot puts it, “the orgy of the philosophers gave way to the orgy of brigands.” The events in France probably had no influence over the actual text of the Canadian constitution, drafted as early as 1789. But did they influence the spirit of the policies and the implementation of the new regime? Let us review certain events and dates. In England, the general public at first greeted the capture of the Bastille with enthusiasm. On the basis of their ideological affinities, English intellectuals applauded the champions of the revolution across the Channel. Politicians such as Pitt, convinced that France would be changed forever by the combat, assisted the movement with all the forces of St. George’s cavalry. However, faced by the clear danger of contagion by the revolutionary virus, the public mood in England soon changed. The first warnings came from Edmund Burke who published his Reflections on the Revolution of France in 1790. The Canadian constitution received royal assent on June 10, 1791, although the text itself had been debated in April and May of the same year. During the debate, on May 6, 1791, Burke cried out to his compatriots, “Fly from the French Constitution.” And this is when, in a melodramatic scene, the orator definitively broke away from his friend Fox. On May 20, 1791, three weeks before assent was given to the Canadian constitution, the British government issued its first edicts against seditious documents, suspended habeas corpus and decided to postpone parliamentary reform within the kingdom. In Great Britain, the boundaries between the parties began to disappear, as even the Whigs adopted an anti-revolutionary Tory approach. “Just as France became more revolutionary,” notes Albert Sorel, “England became more

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conservative.” Another powerful reason to take precautions against the demon of democracy in Canada! […] Consequences for Colonial Freedoms Each of us can now measure the significant influence of parliamentary rule in Canada. By what miracle could it have resulted in any progress in the area of colonial freedoms? The new regime proved to have numerous contradictory and apparently irreconcilable aspects: on the one hand, a colonial government that remained highly dependent on the mother country; on the other, a democratically-­ elected chamber and an electorate more aware than in England, but held back by an omnipotent oligarchy. In other words, a regime that was described as and appeared to be parliamentary, but combined with a form of imperial centralization that went as far as anything seen in the crown colony. The system was organized as follows: at its head was a governor for all the English provinces, a single governor holding all civil and military powers (and supported, except in Lower Canada, by lieutenant-governors), a true viceroy able to rule and govern, free to decide whether or not to consult his executive council, accountable, of course, only to the central government, but also dependent to a great extent on the central government, limited in his initiatives and his power to assent to provincial laws, required to respect the power of the government in London to reserve legislation in the field of finance, tax and justice and regarding the appointment of civil servants, and bound, under a special oath and on pain of dismissal, to supervise the trade laws. Facing this proconsul, who often acted as such, an elected chamber as dissimilar as possible to the English House of Commons, since it was deeply democratic in both composition and spirit, elected by almost universal suffrage in a country inhabited mainly by small landowners. Between the governor and the elected house, was there at least some moderating force, a linkage to articulate and harmonize the separate parts of the political machine? No, but instead two councils, one executive and one legislative, both outside the reach of the people or the assembly, recruited by the governor and by London, largely composed of the same intermingled individuals, both allied to the governor and placed close to him to support the exercise of his autocratic powers.

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This was the strangest aspect of this parliamentary regime, in fact, designed less to relax the previous absolutism than to strengthen it. Governors and lieutenant governors were the first to call for full powers, in particular to avoid being hindered by their executive. Similarly, unlike Fox who wanted to see a council elected by a restricted segment of the electorate, but independent of both the people and the governor, Pitt preferred an oligarchical, strictly loyalist council, whose role was to protect the interests of the home country above all and to rein in the ambitions and the actual or imaginary encroachments of the elected colonial chambers. It is important to properly comprehend the illogical aspects of this new regime, implemented on December 26, 1791. The half-century of agitation that followed is so deeply misunderstood. Some people saw it simply as a sterile struggle for supremacy between the two colonial chambers, others as a mean quarrel over public allocations; while some, like Durham, reduced the combats in Lower Canada to petty squabbles between races made more acrimonious by primitive passions! When we recall the hopes of 1791, the hopes of political freedom and national fulfilment in Lower Canada, the new institutions reveal the depth of the misunderstanding. Doubtless, the stubborn insistence of the central English power on perpetuating the former regime as far as possible, at each new stage, was a constant feature of constitutional evolution in the British colonies – but, in 1791, who would have believed that such dupery was even possible? A younger generation had appeared, in French Canada just as in the Caribbean islands and Latin America, whose members had read the 18th-century philosophers and watched the French revolution unfold with naïve and mystical enthusiasm. They saw the apparently liberal constitution of 1791 as part of this historical context. Totally won over, this young generation wanted to celebrate the event. In Quebec, lanterns were lit; in Montreal, as in the capital, men of both races wanted to mark the occasion fraternally. “Loyal toasts” were drunk; God Save the King, translated into French along with several “similar songs,” was sung. And to create the illusion that some imaginary Bastille had been stormed, in a “delirious transport,” as reported by the Quebec Gazette, glasses were raised to the abolition of the seigniorial regime, the glories of the French revolution, the revolution in Poland, and the advent of “true liberty in the whole universe … as far as Hudson Bay.”

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What naivety, and what disappointment in store! These bookish supporters believed in liberty as glimpsed through the utopic vision of the encyclopedists. Reality would reveal a dangerous mixture of dictatorship and democracy: a regime still lagging behind the institutions that existed in the pre-independence Anglo-American colonies and, graver still, lagging behind social progress in the other Canadian provinces, which were countries not of landlords, but of decentralized properties where each subject was endowed with the right to vote. Clearly, the central government was attempting to implement a chimera where an overly popular element was expected to work with an overly oligarchical element, and an executive more autocratic than that in England with an elected assembly more democratic than the English Commons. Or, viewed from another angle, the goal was still to base a parliamentary regime on rule by a minority. In actual fact, was the 1791 constitution anything other than a  continuation of the crown colony behind the smokescreen of a rigged form of parliamentarism? But how could the risks of such a paradoxical system of government be hidden, in particular in a country such as Lower Canada where, thanks to the membership of the Councils composed of a majority of English speakers, the two ethnic groups faced each other in a proportion that hardly varied over time: 156,000 French versus 10,000 British in 1791, then 300,000 Canadians versus 25,000 English and Americans around 1810, and, thirty years later, 500,000 versus 75,000? The future was only too easy to predict. The goal was to smother the demon of democracy; there was no surer way of unleashing it. Fox had said: “I am convinced that the only method of retaining distant colonies with advantage, is to allow them to govern themselves.” For over half a century, the British authorities would attempt to impose on their North American provinces the reactionary regime that had pushed the thirteen colonies to insurrection. We have arrived at the source of the conflict. It only remains to trace its constant deterioration, and then the final explosion. […] Sources of Conflict The opposition of two ways of life: this is the formula used by a Canadian historian to explain the basis for the conflict between the

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two races in Canada following the Conquest. Some people would explain it as follows: on the one hand, a society of merchants and businessmen, eager to lead their lives in the pursuit of money, wealth and the exploitation of earthly riches; on the other, an essentially peasant society that took the time to enjoy life and, without ignoring material progress, saw it as part of a broader synthesis, rather than as the single and primary source of happiness and the overriding goal of human existence. Others have extended this even further, describing a conflict between two conceptions of life, but also between two mindsets: one which was reluctant to be restricted by the precise wording of constitutions, but preferred to follow the laws of interest and experience, and deal with the fleeting and changeable; the other that believed in written legislation, the abstract formulae of Roman law and a Cartesian approach, the forms of French reason and its imperious need for logic, which admits principles only to take them to their final conclusion, acting as a virus within British empiricism and liable to generate an explosion. At a basic level, however, and despite these differences that can be seen as secondary, was the problem not simply, at least for one antagonist, a problem of existence? A problem of government, to be more precise, but one that raised the question: to be or not to be? This brings us back to the underlying ambiguity mentioned previously. Did the colonies and the central government simply have a different view of the meaning or scope of the regime introduced in 1791? What type, or quantity, of political freedom did England consent to grant its provinces in North America? Did the parliamentary regime bring with it the prerogatives of self-government? Were the colonial charters true copies of the parent constitution, or not? This is perhaps the heart of the matter. Undeniably, both Lower and Upper Canada believed the “true copy” thesis. J.-A. Panet, elected as the Speaker of the Legislative Assembly in Quebec, was quick to claim, for the assembly, “the freedom of speech and in general the immunities and freedoms enjoyed by the Commons in Great Britain, our mother country.” In the constitutional battle that was about to begin, the assembly’s entire strategy was based on this illusory fixation. In 1834, in the 79th of the 92 resolutions, to prove that it had never weakened in its interpretation of the Charter of 1791, the assembly stated: “That this House, as representing the people of this province, possesses of right, and has exercised within this province when occasion has required it, all the

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powers, privileges and immunities claimed and possessed by the Commons House of Parliament in the kingdom of Great Britain and Ireland.” Two years later, concerning the instructions from London incorrectly sent to the Legislative Assembly in Quebec, Papineau dared to state: “The King, in the communications he addresses to us … who, in fact and in law, like all other assemblies, possess, within the boundaries of the colony, the same privileges as those claimed and exercised in England by the Commons, must observe the same formalities and show the same deference in dealing with us as in dealing with the Commons in his Kingdom.” Similar beliefs were held in Upper Canada. In 1818, a committee of the Assembly, and then the Assembly as a whole, in an “address” to the Prince Regent, categorically claimed “the gift to this Colony of the glorious unmutilated boon of the British Constitution in all its plenitude of power and privileges.” Did the central authorities, either directly or through their representatives, maintain this ambiguity? In Lower Canada, when the Speaker, Panet, requested the immunities and freedoms of the English House of Commons, Sir Alured Clarke responded in a way that did more to support than destroy the illusion: “The House may depend on being allowed the full exercise and enjoyment of all Just Rights and Lawful Privileges.” In 1795, Lieutenant Governor Simcoe, addressing the parliament of Upper Canada, defined the 1791 constitution as the colony’s “Magna Charta” and stated that he considered it his “duty” to ensure that everything in the province followed the model of the British government and constitution as closely as possible. The central government was quick to quash these pretensions, and Simcoe was told by Minister Portland that “Whereas to assimilate a Colony in all respects to its Mother Country, is not possible, and if possible, would not be prudent.” In 1810, Liverpool supported the position of Governor Craig. The relation of dependency or subordination between a colonial executive and its colonial assembly, Liverpool observed, could not be that which “most usefully subsists reciprocally between the Crown and the Parliament of the United Kingdom.” However, it was only in 1815 that the legal experts in Lincoln’s Inn were asked to rule on this case of constitutional law. Although they questioned whether the privileges of the colonial assemblies were the equal of those of the imperial parliament, the learned experts were unable, or unwilling, to state exactly where the colonial privileges ended. As late as 1836, Lord Glenelg wrote that in 1791 Parliament had attempted to implant the British

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constitution upon American soil by drawing up a new constitution that appeared to be an almost perfect copy of the original. Could anything be worse than this ambiguity, or more likely to provoke the worst possible consequences? Disagreements began to pile up from the start of the new regime, and not only in Lower Canada, presented by too many historians as the natural home of constitutional squabbles. Simcoe complained about finding the assembly of Upper Canada, “at their first meeting,” “tenacious, and untractable.” And naturally, as is the case in any parliamentary system, financial administration, taxation and the budget were the first political battle­ grounds, leading us to define the constitutional theories or positions of each political force.

T h e o r i e s o f t h e P o l itic al entities In logical agreement with the system as a whole, the executive, meaning in reality the governor, claimed the exercise of autonomous, and even independent powers in the area of finance and the budget. This had a series of corollaries: the executive’s total lack of responsibility towards the elected assembly, the ability to table bills independently, a single vote to approve a civil list for the King’s lifetime, with no possibility for the assembly of reviewing the stipends granted to the servants of the executive; a similar degree of autonomy for any governmental service under the sole authority of the executive, such as the administration of crown lands, military defence, and trade relations with the United Kingdom or the rest of the world. The governor soon acquired the habit of appropriating, on his own authority, certain categories of funds: Crown revenues, occasional and territorial revenue, as established prior to the Conquest and later allocated by the imperial government, around 1794, to civil administration in the province, revenue from dues collected under the Revenue Act, 1774 (an Act previously passed by the imperial parliament) and, in addition, “extraordinary army” expenses, drawn from the central government’s military budget and used, where necessary, to balance deficits in the civil or political administration of the colonies. The legislative council, given a new role in support of the colonial executive, was, in reality, directly dependent on the executive since most of its members were drawn from the executive council or were senior, salaried office-holders appointed by the executive. It was careful to restrict, in turn, the jurisdiction of the elected assembly. The

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actions of the upper chamber can be summarized as follows: it refused to cooperate with the assembly on any bill involving an expenditure of public funds not authorized by the governor, in the amount determined by the governor; it claimed not only the right to accept or reject the budget vote, but also to make amendments; and, to support its actions, it contested the application of the rights and privileges of the English Commons to legislative assemblies in the colonies. From the point of view of the executive, this was, as we mentioned above, the spirit of the regime. Unfortunately another opposing viewpoint had emerged: that of the elected assemblies, which were strongly representative and democratic in nature. As early as 1793, the assembly of Lower Canada forcefully claimed its right to table legislation “tending to lay a charge on the people.” It returned to this topic in 1795 and again in 1798, this time after an amendment in the area of subsidies had been introduced by the legislative council, declaring solemnly this was “the sole and inherent right of the Commons, from which the Assembly never can depart.” The assembly in Upper Canada was equally firm. In 1806, in connection with public funds appropriated without a vote, it protested against what it called a violation of the “first and most constitutional privilege of the Commons.” In 1818, the same assembly waged an outright battle against the Legislative Council’s pretended right to make amendments, and to denounce its interference as “a high breach of its privileges.” […] Would these blunders and mistakes obscure the fact that logic and the politics of the future lay on the side of the elected assemblies? When they demanded control over all revenue, were the assemblies doing anything other than complying with the rules of common sense and sound financial administration? In a note dated September 29, 1828, Sir George Murray, Secretary of State for the Colonies, recognized this openly: “so long as the Assembly is called upon to provide for, & to regulate any portion of the Public expenditure, it will virtually acquire a control over the whole.” As ­Papineau put it in 1838, in harsher dialectic terms: “If we are not to be given all revenues, why are we asked to provide subsidies?” Some historians have upbraided the Lower Canadian parliamentarians for stubbornly insisting on the need to obtain voting powers or control over the budget. Why did they not address, they ask, the more fundamental and decisive issue of self-government, referred to at the time as “responsible government”? As we will see, the parliamentarians had

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never, in fact, lost sight of the objective of self-government. It is impossible not to see that their tactics targeted the same result – in fact, these were classical tactics in the context of British constitutional history. By obtaining the right to vote on the levying of taxes, and by appropriating the revenues generated, the House of Commons had obtained a dominant position in the political system of England. By the same means and with the same objective, the colonial assemblies of the future United States eventually suborned the governors sent out from London. Clearly, the colonial assemblies could not give up their prerogatives in the area of the financial administration of their province without abandoning government to its unelected elements or, in other words, without negating the essential principles of democratic government in a country that enjoyed almost universal suffrage. It would be unfair to spare our admiration for these parliamentarians of former times simply because of a few tentative errors. In all the parliaments of the British provinces in North America, the battle was clearly based on the noble aspirations of free men: to obtain political autonomy in their own small country, in other words the right to govern their own affairs. These struggles were perhaps smallscale and obscure, but they would one day lead to the autonomy, and then the independence of Canada. In French Canada, the issues were even more important than in the neighbouring provinces. In addition to political freedom, the right to a way of living and the survival of a nation was also at stake. On both sides, this lent a tragic dimension to this historical period. […] As though to justify the most daring actions of the assembly, the governors, who should have set an example of political wisdom and respect for the constitution, also overstepped the mark. Government by coups-d’état became the norm. The Duke of Richmond, Lord Lieutenant of Ireland from 1807 to 1813, and as a result poorly prepared for his new role, copied Craig’s approach. During and after his term of office, fiery speeches were heard once again in the assembly, along with diatribes against the majority party and compliments for the minority on the legislative council; they were followed by unspeakable interference in elections. Next, the right to “reserve” legislation was misused, resulting in the dispatch to England, in other words to oblivion, of many useful and even urgent laws; Dalhousie, in turn, directly provoked the elected assembly and

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denied its most basic privileges, for example by refusing to recognize the speaker it elected from among its members. In 1822 came the bill to unite the two Canadas, tabled suddenly before the Westminster parliament. This overtly provocative Bill took direct aim at Lower Canada’s French life and religion, was worse than the Bill later tabled in 1840, and yet was ardently supported by Governor Dalhousie. Emotions ran high in the province – the bishop, assembly members, seigniors, and people jointly presented a protest bearing 60,000 signatures to the King and the two houses of the imperial parliament, which withdrew the Bill. But it is not hard to imagine the deep trace the assault left in the minds of the population. […] A tiresome list of grievances, certainly, but one that cannot mask the seriousness of the situation. And the list is not even complete. The so-called colonial oligarchy, or Family Compact, continued to occupy the key government positions. In 1834, the population of Lower Canada included 600,000 people of French origin and 75,000 of English origin. The elected chamber had 20 English speakers and 68 French Canadians; the Legislative Council had 22  English members and 14 French Canadian members. Under Lord Aylmer, 62 out of the 80 civil servants appointed to paid positions were of English or American origin. London, and then Dorchester, as we noted above, protested in 1793 against the concurrent holding of public office and government stipends, a practice that the Governor considered would only make the beneficiaries hostile to any “control” of their privileges and profits. In fact, from 1791 to 1835, of the members appointed to the two councils, all, except perhaps a dozen, had held, or still held, positions paid by the colonial or imperial government. A list of civil servants occupying more than one position, drawn up by Gosford, named around 18 English individuals but only 2 or 3 French. The investigative commissioners sent to Canada in 1835 commented negatively, as Sir George Prévost had done twenty years previously, on the habit of appointing only persons of English descent to the most lucrative positions. The same situation was denounced, in the same formal terms, by Lord Durham. It seemed inconceivable to him that after 40 years of a parliamentary regime, the Assembly of Lower Canada was still unable to impose its choice of, or appoint, a single civil servant; and as he pointed out, “nor indeed are there wanting instances in which a mere hostility to the majority of the Assembly elevated the

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most incompetent persons to posts of honour and trust.” This favouritism was so clumsy that the 1835 investigators attributed in large part the difficulties that had to be faced to these facts, which isolated the majority in the assembly. To illustrate the effect of this collective humiliation of a proud population we have only to read the f­ ollowing vehement passage from a speech by Louis-Joseph Papineau: What I want is a government made up of supporters of laws, ­freedom, and justice, of men who protect all citizens without ­distinction, who grant them all the same privileges. I love and esteem all men without regard to their origin; but I hate all men who, as the haughty descendants of a conquering force, come into our country to contest our political or religious rights. If they cannot amalgamate with us, let them stay on their island! … We are told, “Let us be brothers.” Yes, let us be so. But you want everything, power, positions and wealth. It is this injustice that we ­cannot abide. […]

U n i o n P o l icy The British parliament attempted to apply Lord Durham’s anglicising policy in Lower Canada. Russell, Glenelg’s successor as Secretary for the Colonies, paid homage to the author of the Report for his project to unite the two Canadas: “You will find that all the general principles of your Report, which can be embodied in a bill, are adopted.” Five days before Durham’s death on July 23, 1840, the Act to unite the two Canadas received royal assent. It was an intentionally punitive policy. Concerning the advisability of the union, the neighbouring province of Upper Canada, the other guilty party, had been duly consulted through the normal channel of its parliament. For Lower Canada, this formality had not been deemed necessary. It is true that the opinion of an unelected and unrepresentative body known as the “Special Council” had been sought, but what did this parliamentary comedy put together by the new Governor, PoulettThomson, have in common with a regular consultation? In addition, with haughty frankness, Lord Melbourne confessed to its arbitrary nature. No competent authority in Lower Canada, he wrote, had been asked to give consent, since “the province of Lower Canada

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had, by the conduct of its Assembly, and by its outbreak and rebellion, placed itself in a situation which obliged us to legislate for it without its consent.” As it had done at the time of Russell’s Reso­ lutions and during the suspension of the undeserving province’s constitution, the British parliament voted almost unanimously to unite the two Canadas, despite the protestations of Lord Gosford, who described the Bill as unjust and tyrannical, and Lord Ellenborough, for whom it was “the most imprudent, the most fraudulent, and the most unjust, measure that had ever been proposed to Parliament.” The new constitution brought a statutory solution to the question of the civil list: 75,000 pounds were set aside for that purpose annually. The debts of Lower and Upper Canada were notably different: 95,000 pounds in the former case, 1,200,000 in the latter. The debts were pooled, mainly to ensure a line of credit at Baring’s bank in London. Lord Gosford judged this action severely, and saw the union of the two provinces as a banking manoeuvre, “due to a mercantile intrigue.” Two articles in the new constitution defined its political aims. The first, Article XLI, stated that all documents and printed proceedings emanating from the legislature would be in the English language only; it authorized translated copies of legislative documents, but denied them any official value. This provision was significant enough in itself, but its effects became even starker in the comments and speeches made by various officials. Just before he embarked for Canada, Poulett-Thomson sought Lord Durham’s blessing, and the new governor wrote to John Russell on March 9, 1840, three or four months before the Act of Union was passed by Parliament, that “The great object which Her Majesty’s Government has in view, and that at which I certainly aim, is to make this Province essentially British.” However, let us listen to the words of the new constitution’s author. The crime of Lower Canada, Russell exclaimed in parliament, re-using one of Lord Durham’s arguments, was that it had used its parliamentary institutions only to push its ethnic aspirations. Its punishment – “for these evils and for this evil spirit” – was to be annexed to Upper Canada. Russell added a comment that once again mirrors Durham’s thoughts perfectly: I think the true policy of this country, not only with regard to England and the Imperial Parliament, but as regards the future interests of Upper Canada, is to give a British character to the whole province [of United Canada], to allow British laws and

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British legislation to have a thorough scope; – to take care, by all means, that the French population shall not be oppressed, that they shall not suffer from any injustice, but at the same time not to allow their jealousies and their attachments to their own ­customs to stand in the way of that great progress which I trust Canada is destined to make. It would be hard to accuse the policy of lacking clarity. The avowed purpose was not only to unite the two provinces, but to unify them, not only in the political sense, but also in the national and cultural sense, in other words to ensure that the English part assimilated the French part. […] For French Canada, what a reversal in fortune! Durham the dictator, had he lived longer, would have seen some of the unusual consequences of his Report. Barely two years passed – and the leader of a people considered unworthy of survival rose from his seat in the parliament of the Canadas to announce, as the head of government, that political autonomy had at last been won and that his compa­ triots had earned their political rehabilitatation. By asking for LaFontaine’s cooperation in the government of Canada, Bagot had not addressed a party or a party leader. As he revealed in a letter to the Secretary for the Colonies, repeating almost what he had written to the French-Canadian leader, he appealed to them “as a Race and as a people rather than a Party.” An even more profound revolution had occurred, and its effects would be felt over time: the transformation of the underlying principle of the Canadian state which was no longer unitary, but instead federative. Each of the two partners in the Province of Canada had, in fact, regained its political individuality. A government was formed that would retain, for the next twentyfive years, a dual structure: one section for Lower Canada, and one for Upper Canada. Dual legislation would lead to the so-called doublemajority system, in other words a dual parliament where the members from each province reserved the right to vote, alone, on the laws affecting their own province. What bright, sun-filled days were those of September 1842. It is not hard to imagine the emotions and anxiety in the whole country, and especially in Lower Canada, during the dramatic events of Kingston. As the drama concluded several key players, including LaFontaine and Viger, wept with emotion and joy. Not since the far-off time of

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1774 had anything similar been seen, any such s­ tartling intervention by God’s provident hand. […]

A D e f i n i t i v e Victory f o r R e s p o n s i b l e Government During these stirring times came the election of January 1848 – a free election, for the first time in many years. A reformist government, the Baldwin-LaFontaine administration, held on to power. The victory of March 11, 1848 is another turning-point in Canadian history. The umbilical cord still held, stretched rather than cut – but this date marked a definitive victory for “responsible government.” The autonomy granted was no less considerable in the executive than in the legislative field. The governor remained the Crown’s representative and the main channel for communications between Canada and the United Kingdom. Governors received their appointment, letters patent and commission from the British central powers – but confined to their constitutional role, they became governors who no longer governed. Just as in England, as Erskine May has described, the advent of ministerial responsibility “practically transferred the supreme authority of the state from the crown to Parliament and people, – so in the colonies has it wrested from the governor and from the parent state the direction of colonial affairs.” In other words, the political pole switched from London to the minor capitals of the North American provinces. The gains were no less significant in the legislative domain, although once again some obstacles remained. The autonomous colonies could only negotiate trade agreements with foreign powers if chaperoned by British diplomats, who in addition directed the negotiations. The laws passed by the colonies could be allowed or disallowed by the British government, although this power remained theoretical rather than practical. In 1849, Lord Elgin demonstrated this to the Montreal rioters: it was no longer possible for a governor to ignore the wishes of his cabinet or of parliament. Other points were specified or corrected in the following years. On February 8, 1850, with respect to a Bill concerning Australia, Lord John Russell summarized England’s new policy towards its adult colonies in two clearly expressed principles: imperial tutorship was maintained in foreign policy, but terminated in domestic policy. As a logical outcome of these principles, Lord

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John Russell acquiesced to a law passed in United Canada in 1847 that suppressed all tariffs favouring products from Great Britain. The year before, the imperial parliament repealed its Navigation Acts which meant, for the colonies, a further increase in their commercial freedom. Around the same time, Her Majesty gave her North American provinces control over their postal service, and allowed them to legislate in the area of literary property. […] In all fairness, merit for the victory of 1848 should go to reformers in all the provinces. Well before Durham and Grey arrived on the scene, they had promoted the formula of the self-governing colony or what they called “responsible government,” a formula that they stubbornly promoted for almost twenty years in political circles in Great Britain. The Union of the Two Canadas had the specific consequence, unforeseen by the empire’s politicians, of bringing together reformers in Upper and Lower Canada and adding impetus to the autonomist movement. All the provinces, as they matured, agitated for more autonomy. As a result, and even before free trade was implemented, the day came when, as Lord Grey put it, it was no longer possible nor desirable to maintain the former colonial regime. Should the reformers in Lower Canada share in this merit? For them, full political freedom involved issues of a higher order than in the other provinces, issues of a cultural and moral nature. They were the first, as early as under Craig’s governorship, to enounce the theory of ministerial responsibility, and they returned to this idea after 1830. At the same time they fought against the colonial oligarchy more than other reformers, and highlighted the system’s vices. In 1842, under Bagot, their unshakeable unity made possible the first victory for “responsible government.” When their allies, the more flexible reformers of Upper Canada agreed, under Sydenham and then under Metcalfe, to a watered-down form of ministerial responsibility, the liberals in Lower Canada, despite some internal wrangling and a few defections, remained focused on the full and orthodox formula of self-governing colony. As LaFontaine wrote in 1845 to René-Édouard Caron, the negociator delegated by Minister Draper, “What you are being offered is a repudiation of the principle of responsibility, as far as its application in Lower Canada goes … in terms of the administration, Lower Canada must have what has been granted to Upper Canada; nothing more, but nothing less.” Two years later, Augustin-Norbert Morin responded to the first proposals by Lord Elgin: “The idea of an Executive Council where perfect trust

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and a complete union of feeling and action did not reign would be contrary to that of a government founded on public opinion ….” Cohesion and a firm set of ideals led, in 1848, to the second ­political rehabilitation of the French Canadians, one that we cannot ignore. In 1847, Lord Elgin negotiated their involvement in a new government. He wrote to A.-N. Morin, using almost the same words as when Bagot wrote to LaFontaine, that he was “sincerely desirous that in the administration of the affairs of the Province, the interests and feelings of that important section of the Inhabitants which is of French origin should meet with the fullest attention and consideration.” By these two key actions, the Governor consolidated this political rehabilitation. Prompted by LaFontaine and in response to a unanimous motion by the parliament of the Canadas, he obtained from the British government the repeal of Article LXI of the 1841 constitution, which had stripped French of its status as an official language. When the new parliament opened in Montreal on January 18, 1849, the Governor went even further. Elgin, the first governor ever to do so, read the throne speech in both languages: a clear affirmation of the political equality of the two races. Translated by Benjamin Waterhouse

Not e s   1 Excerpt from Lionel Groulx, L’histoire du Canada français depuis la ­découverte, 4th ed. (Montreal: Fides, 1960–61), 7–12, 30–6, 50–73, 99–126, 189–208. Originally published in Montreal, by L’Action ­nationale, ­1950–52, 4 volumes.   2 We prefer to write British rule rather than English rule. Perhaps it would be advisable, in the field of history as in other fields, to speak correctly. The term English rule appears to us an incorrect label applied in too many textbooks and by too many historians. The Treaty of Paris did not make Canada an English province, but brought it into that set of countries and possessions, of diverse race and culture, that made up the British empire and were governed by constitutions and laws that were more British than English. In addition, at the political level, Canada was not subject between 1760 and 1931, strictly speaking, to English rule. Not, in any case, after 1848, when it became a self-­governing colony, and its political regime can be described as Canadian. For this reason alone, the expression “English rule” cannot be applied to the whole period preceding the era of independence.

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The Constitution of Canada W.P.M. Kennedy 1

Chapter V The Establishment of Civil Government in Quebec The far-flung Seven Years War at last reached an official end with the signing of the peace of Paris, February 10, 1763, and all the French possessions in North America, except the islands of St. Pierre and Miquelon, were ceded to Great Britain. During the negotiations Canada was weighed in the balance against Guadeloupe, so little were its possibilities understood. To contemporary eyes it was “a place fit only to send exiles to, as a punishment for their past ill-spent lives.” Great Britain, however, felt the necessity of relieving the Thirteen Colonies from the French menace which had irritated them so long, and Canada passed to the British crown. Apart from this deciding issue, Canada was a mere detail in an unsolved problem in which predominated vast unsettled lands, Indian trade, and European settlements outside organized administration. When the British government began to turn its attention “to the establishment of civil government in the territories ceded by the treaty” the efforts made to disentangle the various difficulties were neither clear nor definite. At first, care was mostly directed to the affairs of settlement and of the Indians, and a proclamation was planned dealing with these matters. Later, provisions were introduced into the proclamation creating and defining four distinct and separate governments – Quebec, East and West Florida, and the island of Grenada – but to each was granted an identically vague system of law and administration, without the slightest attention

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being paid to differences in development, population, and political  experience. The royal proclamation of October 7, 1763, gave Quebec its first civil government under British rule. […] The proclamation, as far as the new province of Quebec was concerned, merely outlined an administration for the settled parts of New France. The boundaries were such that the western country, with its trading posts extending to the prairies and to the Mississippi valley, was left under the control of the department of Indian affairs and outside the government of Quebec. Executive authority was placed in the hands of a governor and council. The former was instructed, “so soon as the state and circumstances of the said colon[y] will admit thereof,” to call a popular assembly similar to those in the Thirteen Colonies. Power was given to the governor, council, and contemplated assembly to make laws, statutes, and ordinances. No provision, however, was made for legislation apart from “the representatives of the people so to be summoned as aforesaid.” When it is remembered that one of the main reasons for introducing administrative clauses into such a miscellaneous document was “to increase as much as possible the number of British and other new protestant settlers,” the proclamation is exceedingly indefinite. […] When the proclamation is submitted to criticism, it is clear that the interval between its earlier and final form had not provided any adequate conception of Canadian affairs. The documents of these months disclose neither insight nor knowledge. To cut off the western lands from the civil jurisdiction of the province merely helped to alienate the merchants of Montreal and Quebec, whose business in the western trade was Canada’s strongest hold on economic prosperity. The conditions thus created remained unchanged until they were rectified in 1774 after pressure from the colonists. Nor did the provision for calling an assembly display any more enlightenment. To set up such an institution in a province overwhelmingly Roman catholic would have meant the passing of political power into the hands of two or three hundred protestants who alone could act as members according to the laws of England. A racial and religious oligarchy must arise unless “the state and circumstances” necessary for an assembly included the arrival of a vast concourse of “British and other protestant settlers.” The regulations for the legal system bristle with ambiguities. If they contemplated the disappearance of French law,

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they were impracticable. A social upheaval, in which the old seigniorial and contractual systems were destroyed, alone could justify such a course. On the other hand, it would have been a difficult problem to decide how nearly “agreeable to the laws of England” a completely different civilization could be brought without destruction. […] The long commission and instructions given to Murray did not entirely rectify these defects nor provide a clear scheme of government. Both are full of regulations to govern the future house of assembly and the future laws which it will pass. The assembly, however, was far off – “impracticable for the present” – and legislative authority was vested in the governor with the advice of his council. The grant was not very comprehensive, as they could make no law which should “any ways tend to affect the life, limb or liberty of the subject, or to the imposing any duties or taxes.” The governor acting on similar advice could erect courts of justice, and could appoint judge and justices of the peace with the goodwill of the majority of his council. Nothing is said of the laws to be administered, but English precedents were implied in the instruction that in creating a judicial system consideration was to be given to what had been done in the other colonies, especially in Nova Scotia. In the public commission (which was published) no attempt was made to clear up the religious ambiguity. The private instructions throw light on the difficulty and will be considered later in another connexion. […] With goodwill and courage and with affection towards the Canadians, Murray began his task. On September 17, 1764, he set up a system of civil courts. A court of king’s bench was instituted, presided over by the chief justice, in which criminal cases and the more important civil cases were heard agreeable to English law and to the ordinances issued under the governor’s authority. In this court all subjects were admitted as jurors without distinction. Murray explained that he thought it “unjust to exclude the new Roman catholic subjects … as such exclusion would constitute … two hundred protestants perpetual judges of the lives and property of not only eighty thousand of the new subjects, but likewise of all the military in the province.” […] The attention of the British government was early drawn to the state of affairs; and, with the origins of the Quebec Act of 1774 in view,

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it is necessary to summarize the considerations given to the constitutional problem during these years. In 1765, in answer to a request for an opinion, the law officers of the crown reported that Roman catholics in Canada were not under the disabilities created by the penal laws. A few months later the board of trade recommended a house of assembly elected by all the inhabitants, Roman catholic and protestant. In the following year the law officers advised a mixed system of French and English law. All these opinions, however, were English opinions, and the privy council decided to consult definitely the governor, chief justice, and attorney-general of Quebec. The reports from Canada did not reach London till 1770. Carleton left the work of drawing up a joint report to Francis Masères, the attorney-general, who drew up a long draft in which he examined the advantages and disadvantages of several methods of dealing with the legal system. The draft was not at all acceptable to Carleton, who had already made up his mind. He sent in his own report recommending the laws of England with respect to criminal matters, and the revival of the whole body of French civil law which was in use before the conquest. […] Almost a veil of secrecy falls over the developments which culminated in the Quebec Act of 1774. It may never be possible to reconstruct the history as the new constitution passed through many drafts to its final shape. Carleton undoubtedly stands behind the scenes, which assume a strange interest when we remember that the Act was born amid the rumbling thunders of the coming American revolution. The first great colonial empire, grown to manhood, was shaking its strong locks and stretching its fierce limbs to put to test newer principles, at a moment when the youngest child of empire – weary with political, religious, and racial struggle – was waiting in almost hushed melancholy the fiat of its foster-mother. Tears and hopes centred round Carleton. His dispatches during these years have not been studied here, as they fit more naturally into a discussion of the origins of the Act; but he was at once the most loved and the most hated man, the hero and the villain of the piece. In attempting to form a critical estimate of this period, the most striking point is the constitutional uncertainty. The governor did not know his powers; the merchants did not know if they had been deceived; the noblesse did not know their rights; the Roman catholic church did not know its status; the habitants were encircled in a

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gloom of apathetic doubt. As for the judicial system, it was an almost inexplicable tangle. To determine at any given moment the exact body of laws in force would have tantalized the most penetrating jurist. Even the organization of the council was in debate. In the actual affairs of everyday life there was no efficiency. […] The self-evident desire of Great Britain to treat the province as one of the colonies was also a source of weakness. The very liberties so dear to eighteenth-century Englishmen, and promised with such lavish profusion, were strangely unsuited to a Roman catholic people, heirs to the apathy born of paternalism and still children in political development. To recast the people of New France was too great a task; to make them potential co-heirs with their British fellow citizens to institutions, laws, and systems which they did not understand was to court confusion; to attempt assimilation was to accentuate differences. The royal proclamation, though practically futile, hung over the heads of the French Canadians, a political sword of Damocles. To the British in the colony it represented a broken treaty, a scrap of paper, an ideal to strive for, a promise to be fulfilled. Even the good intentions of men like Murray and Carleton only paved the via dolorosa to a constitutional cavalry. When at last courage was stiffened by other circumstances, it was little wonder that the Quebec Act was grimly entitled “An Act for making more effectual provision for the government of the Province of Quebec in North America.” The Quebec Act, 1774 The serious consideration of a new constitution for Quebec appears to have been begun during the closing months of 1773. Voluminous as the early reports were which have just been considered, prolific as the promises had been since 1766 that the government of the province would soon be settled, there is reason to believe that the mass of material was not critically digested till within a few months of the introduction of the Quebec Act. It was not entirely irresponsible opposition which made Townshend twit Lord North on a delay that had issued in anarchy and confusion. However, when the subject was actually taken up, there was plenty of legal opinion, and much correspondence and consultation between the ministry, Carleton, Masères, Chief Justice Hey, and William Knox, under-secretary of state for the colonies, a man of considerable experience in English

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and American affairs. The bill passed through many hands and appeared in many forms before it was introduced on May 1774, in the house of lords. Only a few members of either house thought it worth their while to remain in London to take part in or to listen to the discussions, and the bill received the royal assent on June 22. […] If the Quebec Act of 1774 is considered merely in its enactments and apart from everything else, generosity is written large over it. The Act might almost be summed up in the words of Burke: “with regard to state policy … the preservation of their old prejudices, their old customs by the bill, turns the balance in favor of France. The only difference is, they will have George the third for Louis the sixteenth.” The proclamation of 1763 as far as it applied to Quebec was revoked. A house of assembly was deemed inexpedient, and a nominated council was set up to assist the governor in legislation and administration. A modified oath rendered it possible for Roman catholics to be admitted. The whole body of French civil law was revived. The Roman catholic church was given a legal status by the provision that titles could be collected from its members by due process. This provision and the new oath seriously modified the Elizabethan Act of supremacy which guarded the religious grant. The regulations for taxation supplementary to the Act were embodied in a statute of the following year and only imposed duties analogous to those under the French regime. […] In spite of opposition from the secretary of state for the colonies, the Quebec Act reannexed Labrador to the province, and extended the boundaries to include not only modern Ontario but the limitless country indefinitely bounded by the Ohio and Mississippi rivers and by the territories of the Hudson’s Bay Company. There is concession here, for the intention, as will appear later, was to preserve the western hinterland as a vast French and Indian reserve to the exclusion of other settlers. The machinery of government set up by the Quebec Act and amplified by instructions to the governor was practically that of 1763. An assembly was shelved with no promises for the future. The council was increased from twelve members to not more than twentythree and not less than seventeen, a new oath widening the choice of members. The only organic change was made in differentiating the executive and legislative functions of the council. Carleton was

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instructed “that any five of the said council shall constitute a board of council for transacting all business in which their advice and consent may be requisite, acts of legislation only excepted.” He interpreted this order as justifying him in creating a kind of inner circle or “privy council” as he called it, to whom he entrusted all administrative work to the exclusion of the other members. […] The provision relating to the law need careful attention. British criminal law and French civil law were imposed on the province – Carleton’s suggestion of 1769 – the latter being substantially the Coutume de Paris, modified by the edicts and amendments of the governors and intendants of New France and amplified by French legal authorities. Its provision governed not merely land tenure, marriage, inheritance, and dower, but trade and commerce. Thus the prosperous business interests of the colony, largely in British hands, passed under a French code. […] It is obvious that there was created a loophole for the British in the colony. That there was not substantial legislation on their behalf is true, but the debates and royal instructions are not obscure and prove that the general principle laid down in the constitution was capable of modification on the spot. The scheme was this: an assembly could not be granted; English criminal law was a good foundation; French civil law was just, considering the local conditions; changes could be made by the governor and council of the province – the system was not rigid. So clear was the purpose that Carleton was ordered to communicate to his council at once such of his instructions as required their advice and consent. Carleton’s course is confusing. He did not immediately publish the full Act, but merely inserted in the Gazette an abstract which left the impression, so dear to popular histories, that the laws were English criminal law and French civil law, with no elasticity or avenue for change. […] The provisions granted in the Act to the Roman catholic church are remarkable, when the legal disabilities in England are recalled. Although the church of England became the official church of the colony under very direct governmental control, the Roman catholic church was placed on an almost equal footing. The freedom of ­worship promised by the peace of Paris was once more granted. The

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condition attached was no longer vague, for the saving clause guarding the king’s ecclesiastical supremacy disappeared in the legalizing of the clerical rights and dues, and in an oath which modified the Elizabethan model. It is true that the royal instructions to Carleton ordered that the Roman catholic bishop and priests should exercise their offices only under licence from the governor, and that he should remember that only toleration was granted and not “the powers and privileges of an established church.” All appeals to the Vatican were prohibited, but this regulation was neglected from the beginning. There was no religious hatred for many a day to come, and Roman catholics and protestants shared the parish churches for their respective services. With this background it is now possible to discuss the origins and wisdom of the Act. […] Lord North emphasized again and again that the scheme was the only one possible under the circumstances. The attorney-general execrated the idea of imposing on the conquered the complete institutions of the conquerors, as such an act would involve misery and slavery. The happiness of the Canadians was at stake. Barbarity and tyranny alone could descend to the theft of customs, religion, and laws. It certainly looks like a remarkable miracle to find men traditionally tory and reactionary handing out to a conquered people, of a race historically hostile to Great Britain and of a religion condemned by bell, book, and candle in scores of British statutes, such a charter of liberties at the close of the eighteenth century. It may be granted that the Act was generous, even miraculous. The student of history, however, must ask if the generosity was logical and spontaneous, if the suspension of the laws of party politics arose from an overwhelming conviction that Canadian conditions were such that the government bill appeared the only solution. The Quebec Act requires more than an emotional surrender even to a political miracle. […] A priori the Act appeared unwise. In reversing the policy of 1763, it was a distinct breach of faith. Many had come to the province relying on the promises given in the royal proclamation. Their hopes were disappointed, and it is hardly surprising to find that not a few of them cursed British perfidy and joined the rebels’ cause. In addition, it is doubtful if the Act carried with it the goodwill of the Canadians as a whole. To the clergy, seigniors, and lawyers it was a

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carta libertatum – a grant of privileges – but to the habitants it was not so entirely acceptable. During the ten years of chaos before the passing of the Act they had become more independent, and, not unfrequently the old ecclesiastical and feudal dues and rights remained unpaid. The idea of their being reimposed did not carry with it universal approval. Carleton soon found out that a process of disintegration had set in, of which his military mind had taken no account. When the seigniors and clergy called on the people to arm against the rebels and traitors of the south, there was little response. There are few more pathetic things in Canadian history than Carleton’s dispatches during this period. Before long he was convinced that neither noblesse nor priesthood could rally the habitants in defence of their country. Southern propaganda flourished in the rich soil of ignorance and suspicion. He feared to assemble any great multitude, as few were disposed to take up arms for the king. Every means failed to bring the people to a sense of their duty and only a mere handful marched against the enemy. Gentry and clergy alike failed “to retain their infatuated countrymen.” They were “a wretched people blind to honour.” Many of them openly joined the invaders, and their adherence was measured by the strongest side. Over and over again Carleton lamented his disappointment and the ignorance, fear, credulity, and perverseness of the habitants. The Act failed in that those most conciliated by it were unable, for reasons of which Carleton took no heed, to rally the Canadians to arms – “the most ungrateful race under the sun.” The Act failed in intimidating the southern colonies. The day had passed when a French colony on their north would stay their hands. The political ferment was already at its height, and the colonists whom French intrigue in land and trade and Indian affairs had failed to unite were now ready to draw a single sword in selfdefence. Acts of parliament were consolidating their ranks, and the Quebec Act instead of being a deterrent became a violent irritant to their purpose. The Act laid on Quebec the old seigniorial and ecclesiastical system and buttressed up institutions which were already losing hold on the habitants. It is also claimed that the presence of a solid FrenchCanadian group in modern Canada with all its attendant political difficulties can be traced to the folly of the Act. Many political thinkers, quite apart from racial and religious prejudices, believe that a less complete recognition of French-Canadianism in 1774 would

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have been acceptable to the French Canadians and would have eliminated such problems as are evident to-day in relation to race, creed, and education. They point to Louisiana, where no difficulties have arisen out of a failure to grant privileges. But it is futile to discuss the wisdom of the Act from the might-have-beens of history. On the other hand, the Act saved the province, if we contemplate a situation in which priest and seignior had combined to rally the people against Great Britain – a situation made all the more dubious when France joined in alliance with the colonies. The United States might not have tolerated the perpetuation of French customs in the union, but the idea of Vergennes to make Canada an autonomous province under French suzerainty was not outside practical politics. The general indifference of the French Canadians saved the situation, and even Lafayette failed to move them from their apathetic mentality. The decisive factor was the loyalty of the clergy and seigniors. Carleton indeed built better than he knew. The loyalty of the French-Canadian church and upper classes was secured and proved a powerful influence against disintegration. Not only in the American revolution, but in the French revolution, the Napoleonic wars, in 1812, and in the rebellions of 1837, the church and upper classes in  Quebec set their faces like flint against organized treason and dismembering sedition. It was a blessing for Canada that the Quebec Act settled the status of the Roman catholic church and removed it for generations out of that damnosa haereditas – religious politics. Had its position been left in the air without a statute behind it, the coming of the United Empire loyalists might have added another war of religion to the tragedies of history. As it was, the transition to a new constitution was infinitely less complicated. It is fair to state, however, that in the width of the concessions and in the comprehensiveness of the guarantees, little place was left for give and take, and there was thus eliminated much of the sweet reasonableness of compromise. To hold on and not to move, to fear further claims and to be on guard, are a large price to pay. Quebec has brought essential and vital and characteristics gifts to the Roman catholic church satisfied in 1774. In so far as Quebec is to-day a strong centrifugal force it can be traced to 1774. One thing is certain, the Quebec Act strengthened the imperial tie, and we may too lightly exaggerate the defects and too lightly appreciate the virtues. […]

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The Constitutional Act of 1791 needs careful analysis. The Act did not divide Quebec, but assumed that such a division would take place. Various suggestions had been made to get over diplomatic friction with the United States, but as these proved futile the boundaries were left for a subsequent order in council. The Quebec Act was repealed, in so far as it related to the appointment and powers of the council, and legislative authority was vested in the governor or lieutenant-­governor acting with the advice and consent of the legislative council and assembly in each of the two new provinces. […] On August 24, 1791, an order in council divided the province of Quebec into Upper and Lower Canada, and instructed the secretary of state to prepare a warrant authorizing the governor of the province to fix a date for the commencement of the Act within the provinces not later than December 31, 1791. On November 18 Alured Clarke issued a proclamation bringing the Act into effect on December 26, 1791. In September 1791 Dorchester’s commission and instructions were issued as governor-in-chief of Upper and Lower Canada, and Alured Clarke and John Graves Simcoe were appointed lieutenant-governors of Lower and Upper Canada respectively. On May 7, 1792, Clarke divided Lower Canada into twentyseven electoral districts returning fifty members to the house of assembly, and in the following July Simcoe divided Upper Canada into nineteen counties which were to elect sixteen members. When we turn to consider the debates on the Constitutional Act certain principles governing the new constitution appear. The division of the province was intended to put an end to the competition between the French Canadians and the British. The idea was distinctly stated by Pitt: the creation of two separate colonies which should be left to work out their own destinies. The guiding force, however, was the reproduction as far as possible in each province of the eighteenth-century British constitution, with a local aristocracy and an established church. This reproduction was to act as a kind of charm. It was to prevent the repetition of the first great colonial tragedy; and Pitt actually believed that Lower Canada, seeing the beneficent workings of this venerable constitution in the neighbouring province, would sigh for the gift and embrace the whole system from conviction. He dropped no hint in public, as Grenville had done in private, of possible trouble and war with France and of the necessity to conciliate French Canada, but he

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declared that the division aimed at satisfying both races in order finally to unite them. The future unity was to come, because the French Canadians, initially satisfied by being separated from the British, would actually become dissatisfied because of the separation. They would finally sink race, religion, and traditions and rush to accept the British constitution out of sheer jealousy, lest Upper Canada should enjoy a monopoly in such a life-giving, wonder-­ working scheme. Division would suit the “jarring interests” and “opposing views” of the present; but the very example of the “image and transcript of the British constitution” would compel union. It would be a leaven to leaven the whole lump. The shadow of Abbé Sieyès must have fallen over Pitt during the debate, for it is seldom that a constitution was formed on such principles. Pitt feared racial strife; but he was prepared to use provincial jealousies in order to produce union. Nature was against his benevolent purpose. The discord lay deep in the heart of Lower Canada, and while that rankled Lower Canada would look with no longing to Upper Canada to heal constitutional trouble. The British in Lower Canada had opposed the division of the province. They had spoken in clear-cut terms through Adam Lymburner at the bar of the house of commons. It is no judgement based on experience that would criticize Pitt. To Dorchester information had been given that the danger in Europe necessitated the consolidation of every available interest in the Empire. Grenville made it clear that concession to the French Canadians was an international necessity. They were to be kept quiet from possible French influences in case of a European war, by having their nationality recognized and buttressed in a province where numerical superiority would guarantee their predominating influence. That is one point of view. In due course, having fulfilled this function in international policy, this nationalism was to dissolve and fade out of a convinced and voluntary desire to possess in its entirety the whole administrative scheme of an alien race. Such sublime faith, like all sublime faiths, can only be ascribed to ignorance – ignorance of Canada, of history, of nationality. While Burke was giving way to frenzied temper and Fox was wiping eyes tear-stained over a broken friendship, Pitt was inaugurating a constitutional experiment in Canada which could never produce the results which he intended. Constitutions are not supernatural. They flourish and are successful where they reflect social development, and where the friction in the political machine is reduced to the lowest point. Pitt’s

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Constitutional Act was charged with friction, and in time Upper Canada found the eighteenth-century British constitution an excuse for radicalism, and Lower Canada used it to increase rather than to diminish separatist tendencies. […] From the fall of Canada Great Britain treated the French Cana­ dians as a distinct group. In the earlier years the treatment was more or less tentative. It lacked definiteness and insight and never assumed the clearness of a concrete political purpose. There was a good deal of floating sentiment, of kindliness, and of generosity which carried French Canadians across the rough places in British law and the more difficult rough places in British traditions. The beginnings of the colonial troubles, as we have seen, transformed all this. They lifted the whole position out of the realms of emotion into those of practical conceptions. With the Quebec Act the French Canadian race was given a statutory charter of privileges, and the distinct group life of a distinct nationalism was recognized by law within the empire. The application of this charter to the actual life of the province fell to the hands of Carleton and Haldimand, who, for reasons which have already been discussed, interpreted it in the strictest sense and made the grant far stronger by hiding the spirit of the Act. The British in the province were treated almost as non-existent, and at any rate they were persistently snubbed. In due course the FrenchCanadian rank and file, who had been at first suspicious of the Danaän gift, came to look on the Quebec Act as the visible sign and symbol of their group life, and there grew round it a race emotion which gathered strength with the years. When colonial difficulties again forced a change, no attempt was made to break up this life or to divert this emotion. A British constitution was given to a French people in the fond hope that the alchemy of such generosity would be magical, and that in the laboratory of constitutional experience they would forsake language, laws, religion, and race itself. No account was taken of the peculiar persistence of racial differences, and in the final analysis the French Canadians bent the constitution to racial ends. When the shadow of Craig’s regime fell across the popular life of Lower Canada, opposition did not express itself fundamentally in political terms, nor did it use political weapons. “Notre langue, nos institutions et nos lois” seemed on the surface a political trinity, and by the shallow-thinking administration both in the province and in

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England it was interpreted as an expression of political ends which would be guarded at all costs. As a matter of fact the challenge was one of race, and the triple watchword only stood for things FrenchCanadian in so far as they were living racial forces. The popular assembly in Lower Canada never in reality took on a political or constitutional aspect. It was an arena for French-Canadianism, an organized expression of race consciousness, a guardian of a people within the gates of an alien system. Its theatrical and persistent vigils were made all the more intense because a few British members represented another race in a French province. They were considered outposts of an anglicizing policy unfortunately entrenched in the lieutenant-governor and the executive and legislative councils. It is impossible to work through any considerable portion of the vast historical papers of the period, or to attempt to view the history with contemporary eyes, without being forced to the conclusion that racial antipathies governed the issues. Behind the quietness which conciliation produced and the aggressiveness which more arbitrary methods intensified, there lay an energizing life deriving its vitality from the most subtle, most tantalizing, and most disintegrating force in history. The clash was inevitable under a constitution which was not framed for such a situation. […] It may be asked then, why did French Canada not rise as a man in 1837. There are several answers. The rebellion was premature and Papineau’s sentiments ran to seed in ineffectual organization. Fortunately, too, the theatrical rodomontade of emotional preparation had stirred the military to something like effective preparedness. The church, however, was the deciding factor. The Roman catholic clergy found it necessary to apply the brakes to the racial machine. There was an obvious probability that the racial troubles might take on a popular political colour, and the church had not had a very happy experience in history with popular movements. The appeal, too, to the institutions of the United States and the foolish hope that aid would come from the hills of republicanism stiffened the back of the hierarchy. It may be said that the Quebec Act saved the situation in 1837–8, and – it may be said also to have ­created it. In Upper Canada the failure of the constitution was due to political causes. The popular movement in that province was never racial, although there had been moments when the “family compact” gave

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to the term “Yankee” an ethnological significance. A Yankee was fundamentally a different person from an Upper Canadian loyalist. The history of reform in Upper Canada is that of an appeal against constitutional rigidity. Simcoe’s ideal had become stereotyped in insti­ tutional stagnation. There was a recognized privileged class in the executive and legislative councils – a group had cornered the administration. The church of England held the position of an established and privileged communion. As a consequence it perpetuated disabilities for which there was no excuse in a new country, it outraged the religious sentiments of the majority of the population, and its endowments cut across the economic and educational life of the province. A privileged social class, a privileged administrative group, and a privileged church had entrenched themselves behind the constitution. The reformers aimed to see if they could not be forced to move without destroying the constitution. The constructive reformers of Upper Canada never dabbled in conventions, complete popular institutions, or direct political control. They desired to remove the constitution from the position of being a rigid shelter for privilege and to work it in such an elastic way as to give freedom and political liberty to all. They practically arrived at a theory of responsible government. They demanded reform for its own sake, for political ends. The problem in Lower Canada was how to lower every barrier for the advantage of race consciousness. The problem in Upper Canada was how to divide political authority so that “the advice of the house of assembly” might be an efficient fact as well as a constitutional theory […] But perhaps the most serious cause of failure in the functioning of the constitution was the fact that the crown had no constitutional responsibility to the houses of assembly, and yet there could be no legislation without them. The question was how to link up the chief executive authority with the elected chambers. As a matter of fact no adequate answer to that question was found within these years. A financially irresponsible executive was also constitutionally independent, and the houses of assembly in seeking vaguely and for different reasons to cure a disease which they had not in reality diagnosed frequently overstepped their spheres, with the result that they were dissolved time after time. Constitutionally the governors had as much right to dissolve them as the king had to dissolve the imperial parliament, but in the latter case the king would act on the

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advice of responsible ministers in a spirit of nebulous, if royal neutrality. In the Canadas, when the governors resorted to this extreme, they were driven to act in the capacity of political party leaders. As a consequence another element was added to the growing forces of discontent with the executive, while the houses of assembly became more and more aggressive in asserting what they conceived to be their rights. […] The period closes almost in darkness with the non possumus of Russell’s resolutions, the tragedy of rebellions, and the suspension of the constitution of Lower Canada. In darkness, but not in entire failure. These years, thick with error, brought with them an invaluable quota of experience. The hushed racial melancholy of Lower Canada and the stifled political aspiration of Upper Canada bore witness to the fact that race could not be crushed or satisfied in its active life by inadequate constitutional recognition, and that a political people could not for ever sit down quietly under the domination of privilege. The persistence of Upper Canada’s aspiration is the significant note in the history, and in that persistence lay, as events turned out, happiness for Lower Canada. […] The distinction between self-government and responsible gov­ ernment should at this point be made perfectly clear. While self-­ government connoted the domestic control by Canada over its own affairs, responsible government implied a particular set of institutions through which the legislative power and executive authority were brought into relation to the will of the people. In the British constitutional development this meant cabinet and party government. The significance of the distinction lies in the fact that at this juncture in Canadian history the general advance in self-government was vitiated by a general stagnation in the process of responsible government. With the settlement of the larger questions, and with the formation of the liberal-conservative party, there was little place left for distinct platforms. The opposition offered by the “clear grits” and the “rouges” was such that it could not command a working support of the province. The former were too radical for their day, and the anti-papal views of Brown were such that the party could not hope to draw any aid from Lower Canada. The “rouges” were mistrusted throughout the country. Party government, then, degenerated in a recurrence of dissolutions and elections which settled

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nothing. There were, too, fundamental difficulties in the constitution, which loomed up with the disappearance of the more important issues. French Canada had been recognized by the Quebec Act and by the Constitutional Act as a distinct race group. The hoped-for blending of the two peoples had never taken place. The events of 1837–8, the Durham Report, the Sydenham experiment, the reaction against Bagot’s system, the recognition of a dual ministry under LaFontaine and Baldwin, all combined to emphasize the fact that two distinct races were living together in one province and that each was prepared to guard its privileges. Bagot and Elgin tried to divert the race consciousness of the French Canadians into political channels, but both were forced to recognize political groupings based on nationality, and every ministry from 1849 on was constructed on the foundations of representation from Canada East and from Canada West, with practically a prime minister from each division. […] The situation might be summed up as fundamentally and incidentally impossible. First, an attempt was made to govern by unitary system two distinct communities. A common legislature was called on not merely to act in matters where some general public opinion might be expected, but in details suitable to different races. Secondly, this attempt was made under a constitution which was politically unjust to the increasing economic development and population of Canada West. Thirdly, the stability which race, religion, language, traditions, and customs gave to Canada East irritated its neighbour; and, fourthly, any attempts to change the constitution were incidental forces which intensified the fundamental difficulties. In other words, when the inherent defects in the machinery were pointed out, such opposition was raised as made the hope of change far off and problematical. It is not surprising, then, that with fundamental weaknesses, grave incidental differences, and no great political party issues, government was reduced to an absurdity. Within ten years ten ministries held office. […] Tinkering with the constitution produced no results. When the steadier heads began to look objectively at the political situation, they saw that there were two sets of problems – those of a local and those of a general nature; that there were two races, French and British. No conceivable adjustment of the existing machinery would satisfy the conditions. Across the international line, a constitution

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was being tested which at any rate professed to be based on a formula suitable to Canadian conditions. The idea of federation came once more to the front. The growth and fruition of that idea at last brought political healing.

Not e   1 Excerpt from William Paul McClure Kennedy, The Constitution of Canada: An Introduction to Its Development and Law (London: Oxford University Press, 1922), 32–87, 156–66, 278–80.

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Canada and Its Provinces Adam Shortt and Arthur G. Doughty 1

U n d e r t h e T r e at y o f P a r i s and the Quebec Act, 1763–91 Introduction “Moreover, his Most Christian Majesty cedes and guarantees to his said Britannick Majesty, in full right, Canada, with all its dependencies.” This brief statement from the Treaty of Paris is the index to the character of subsequent Canadian constitutions. The constitution of Canada was to be British. The functions of the various offices of government, their relations each to the other and to the body of the governed were to be determined in the light of the constitution of England. But it was after the model of the English constitution of the eighteenth century – that which aroused the admiration and veneration of Burke and which George III exalted to the dignity of “the most perfect of human formations” – that the first British constitution of Canada was fashioned. The cabinet so brilliantly portrayed on the pages of Bagehot had not yet come into existence. No reform bills had infected the earlier parliaments of George III with the baneful evils of democracy. In its application to the eighteenth century the sovereignty of parliament, which Professor Dicey regards as the first principle of the constitution, differs distinctly from its modem application. To the average eighteenth-century observer the separation of the executive, legislative and judicial functions would have appealed as the supreme virtue of the British constitution. However, the determination of George to follow his mother’s advice and to “be King”

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was a most pertinent fact in Canadian government. The actual supremacy of the crown was the condition which, above all others, determined the character of the first British constitution of Canada. […] But the Canadian constitution could not be wholly British. The foundation on which the British structure was to be reared had been prepared by his Most Christian Majesty of France. The civil relations of the vast majority of the people to whom the constitution was to apply were already regulated by French law. Their attitude towards government, their capacity for enjoying constitutional liberties, their ability to perform constitutional duties were determined by their relations with a French colonial government. The principles of the British constitution were introduced into an atmosphere to which they were alien, and the course of Canadian government is at all points modified by the contact and, at times, the conflict of laws, traditions and customs essentially diverse in character. Likewise, the position of Canada as a colony of the British crown determined in a more particular manner the character of its constitution. Dependence is the essential characteristic of a colonial government; supreme constitutional authority became vested in an office located beyond the confines of the colony. In this respect the constitutions of Canada and the New England colonies were similar, yet they differed in their origin in that the Canadian constitution, as the result of the cession, was imported ready-made, while the New England constitutions were, to a large extent, the product of colonial conditions. The manner in which this extra-colonial sovereignty manifested itself is a most important factor in the growth of the Canadian constitution, and at no time is its significance greater than in the earlier period of its history. The constitution with which we have to deal is therefore British, grafted on the stem of a FrenchCanadian dependency.

S o u rc e s o f t h e Constitution The history of the Canadian constitution is derived from many sources. Its letters of adoption into the British family are found in an  international treaty. The cession gave to the king in council the right to determine the character of the government of the colony. Its ­original constitution is therefore contained in a proclamation of the king and a commission under the sign manual. When the

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prerogative had once been exercised and a representative legislature granted, supreme legislative authority was transferred to the parliament of Great Britain. The statutes of the imperial parliament thus become an important source of the written constitution. Orders-in-council, commissions, proclamations issued under the authority of imperial statutes, proclamations of the governor, ordinances and statutes of the colonial legislature, contribute to complete the scheme of government. These legislative enactments as interpreted by the courts, and with the common law as a general background, compose the law of the Canadian constitution. But in addition there has grown up a mass of convention surrounding the exercise of the prerogative of the crown and the privileges of parliament. The influence of British practice has entered largely into the determination of the custom of the constitution. The expression of these conventions, and the discussion of the transformations which constitute their growth, must be sought in the records of the legislative and executive bodies and in the correspondence of the officials of the colony. From these various written sources the history of the constitution may be gleaned. […] The Crown and the Imperial Parliament The capitulation of Quebec introduced into Canadian government a new factor – the sovereignty of the British crown. The general relations existing between the sovereign and a colony were the product of the British colonial system and had been evolved many years before Canada became a British possession. While these relations were a most important factor in the government of the colony, they find but a very inadequate expression in its constitution; they were presupposed in the constitution and were, in fact, considered as superior to it. Sovereignty was exercised in a two-fold manner – by the king in council and by the king in parliament. Executive and administrative acts were the expressions of the king in council, while legislative functions were performed at times by the king in council, though normally by the king in parliament. In the transaction of the executive duties connected with the colonies the crown operated through the office which in later years became popularly known as Downing Street. For many years before the conquest of Canada, a commission, appointed by the crown and

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bearing the name of the Board of Trade and Plantations, existed for the purpose of collecting information relating to colonial affairs, and, when required, of tendering advice to the crown. Executive responsibility was borne by the secretary of state for the Southern department until 1768, when a separate secretary of state was appointed for the management of colonial affairs. In 1782 a complete change was made in the administrative system. The Board of Trade and Plantations and the office of secretary of state for the Colonies were alike abolished, and the oversight of the Colonies was assumed by the secretary of state for Home Affairs. Four years later an advisory committee of the Privy Council was created for Trade and Foreign Plantations. In 1794 a further reorganization was effected, when colonial affairs were brought under the newly created office of secretary of state for War – a department which a few years later became officially known as that of the secretary of state for War and the Colonies. During the remainder of the period here considered this office continued to be the channel of communication between the crown and the colony. The sovereignty of the king in council was most prominently manifested in the appointment and control of the colonial governor. The selection of the governor was in all cases subject to the approval of the king, and the position was held only during the royal pleasure. The governor’s commission, and the instructions which determined his administrative policy, though issued in the name of the king, were prepared by the Board of Trade and Plantations. The more minute instructions on the detail of administrative policy were contained in the correspondence between the colonial secretary and the governor, which expressed the opinions of the king’s responsible advisers. In the appointments to colonial offices, particularly during the period immediately following the Conquest, the control of the crown was conspicuously exercised. The chief justice, the attorneygeneral, the receiver-general, and the collector of customs were appointed directly by the crown. The exercise of this prerogative was later greatly modified, and appointments to important stations in the province, though in the name of the king, were in reality made by the governor. In the actual administration of colonial affairs the crown exercised a most effective control. This was particularly manifested in the administration of the provincial finances. […]

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During the period between the Conquest and the promise of a representative legislature in 1763, the king in council exercised supreme legislative power in Canada. The legislative supremacy of the crown was still further expressed in the right to conclude treaties affecting the interests of the colony and to disallow colonial legislation. Supremacy in ecclesiastical affairs, in the creation of parishes, in the erection of rectories and in the appointment to ecclesiastical benefices was formally claimed by the crown. While the free exercise of their religion granted to the Roman Catholic subjects by the Quebec Act was subject to the king’s supremacy, the actual exercise of the royal supremacy was, for political reasons, permitted to rest in abeyance during the first half century of British rule. It was only when later years introduced new political factors that the question of ecclesiastical supremacy became of practical importance. The defence of the colony was a particular concern of the crown. Control of the militia raised in the colony was lodged with the governor, while the commander-in-chief of the North American army exercised command over the regular force stationed in the province. The presence of several regiments of the army thus introduced the authority of an officer who seldom resided within the colony, and whose policy not infrequently clashed with that of the civil governor. […] The Establishment of Civil Government The definite acquisition of Canada by the Treaty of Paris directed attention to the question of the establishment of civil government. The commissioners for Trade and Plantations advised that the Canadian constitution should be modelled on the government of the American colonies, and that a public declaration should be made of His Majesty’s intentions in order to give confidence and encouragement to such of his subjects as seemed inclined to settle in Canada. Accordingly, on October 7, 1763, a proclamation was issued declaring with reference to the colonies of Quebec, East Florida, West Florida and Grenada that the governors had been authorized, whenever circumstances would permit, to call assemblies similar to those of the British colonies in America. “In the meantime,” it declared, “and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our said Colonies may confide in our Royal Protection for the enjoyment of the Benefit of the Laws

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of our Realm of England.” To this end directions were given for the constitution of courts for determining all causes, civil and criminal, “according to Law and Equity, and as near as may be agreeable to the Laws of England.” In the November following James Murray was appointed governor-in-chief of the Province of Quebec. The commission to Governor Murray contains an outline of the first written constitution granted to Quebec. In brief, the government was to consist of a governor and council, and, if considered desirable, of a legislative assembly. […] The Crown and the Imperial Parliament While the change in the form of government effected by the Constitutional Act did not alter the relations subsisting between the crown and the colony, it was the cause of the development of a determined resistance to the exercise of certain of the royal prerogatives. The question of the ecclesiastical supremacy of the crown was brought into prominence soon after the passing of the Constitutional Act. Parishes of the Church of England were to be erected by letters patent under the great seal of the province issued by the governor upon the advice of the executive council. The power of erecting parishes of the Roman Catholic Church, by a provincial ordinance of 1791, was vested in the governor and the superintendent of the church. The supremacy of the crown in the appointment to church offices was of much greater importance. The exercise of this prerogative in the government of the Church of England aroused no opposition, since it had the sanction of the tradition and teaching of the church. Such was not the case with the Church of Rome. Prior to the Conquest the Bishop of Quebec, though nominated by the king of France, received his appointment and derived his powers from the See of Rome. He was then admitted to take the oath of allegiance and was installed in his bishopric by royal letters patent. The patronage of the church under the French regime was vested in the bishop. The supremacy of the crown was in a special manner preserved by the Treaty of Paris and the Quebec Act, while the instructions issued in 1791 directed that no person was to have holy orders conferred upon him or to have the care of souls without a licence from the governor. While the settlement effected at the time of the capitulation of Montreal remained silent on the question of the appointment of a

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bishop, Monseigneur Briand, the first titular bishop subsequent to the Conquest, was elected by the clergy, and, after receiving the approval of the governor, was consecrated as bishop under the authority of the Pope. He was then compelled to take the oath of allegiance to the crown in his capacity of superintendent of the Roman Catholic Church. It early became the practice for the bishop to select, subject to the approval of the king’s representative, a coadjutor who, it was understood, should succeed to the office on the death or retirement of the bishop. The exercise of the crown’s supremacy in connection with the appointment of a bishop became confined to the approval of the choice of a coadjutor and of his succession to the office of superintendent of the church. The nomination of cures to parishes was regularly made without reference to the civil authorities. It will thus be seen that during the years immediately following the Conquest a very feeble effort was made to enforce the ecclesiastical supremacy of the crown. The constitution of a popular assembly, and the consequent advantage of securing a majority friendly to the government, gave a new importance to the patronage of the church. The influence of the clergy in the election of representatives to the assembly was a factor which even the governor could not afford to neglect. During the administration of Sir Robert Milnes, and on other subsequent occasions, attempts were made to secure an agreement by which the supremacy of the crown in the nomination of cures could be made a reality. The Canada Bill of 1822, which proposed the reunion of the Canadian provinces, but which the government saw fit to withdraw, contained specific provisions making the appointment of cures to depend on the consent of His Majesty. Though involving claims which were inconsistent with the tenets of the church, the constitutional rights of the crown to exercise its prerogative of supremacy could not be denied. Nevertheless it was considered expedient not to insist on a strict compliance with the law, and the crown remained content with a purely nominal supremacy. […] No attempt was made in the written constitution to define the relative spheres of legislative authority of the imperial and provincial parliaments. In general the imperial parliament passed laws affecting interests extending beyond a single colony – as, for instance, the regulation of trade, the naturalization of aliens and all questions of

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international significance. In addition, certain extraordinary affairs of colonial concern were reserved for determination by the imperial parliament. These issues, while, in a sense, strictly colonial, were from their very great importance considered of imperial concern. To this class belonged legislation affecting the constitution of the colonies, its amendment and suspension, and particular issues growing out of special features of the constitution. Hence the clergy and crown reserves afforded ground for the legislative interference of the imperial parliament. In matters of purely colonial concern the exclusive right of the colonial legislature was acknowledged. The principle was given a clear statement in a dispatch of Lord Glenelg relating to the clergy reserves in 1835: Parliamentary Legislation on any subject of exclusively internal Concern in any British Colony possessing a representative Assembly is as a General rule unconstitutional. It is a right, of which the exercise is reserved for extreme Cases, in which necessity at once creates and justifies the exception. But important as is the question of the Clergy Reserves in Upper Canada, yet I cannot find in the actual state of the question any such exigency as would vindicate the Imperial Legislature in transferring to themselves the settlement of this Controversy. The power of amending the constitution of the province, which, it would seem, belonged exclusively to the body which had created it, was virtually claimed by the House of Assembly of Lower Canada. The constitution of the executive and legislative councils was a special grievance which could be removed only by a constitutional amendment. To secure this amendment the assembly first adopted the course of petitioning His Majesty and the houses of parliament setting forth the defects and suggesting remedies. On the failure of the imperial parliament to satisfy these demands, the assembly proposed the calling of a constitutional convention composed of delegates “freely and indiscriminately chosen by all classes and from all classes of the community, so as to be in harmony·with the interests of the Province and with those of Your Majesty’s Government.” Such a body, reporting the result of its deliberations to the imperial parliament, “could do no discouragement to the supreme authority of the Empire, while it would be in unison with numerous examples of free

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institutions on this continent.” The attitude of the British government to the constitutional convention was expressed by Lord Goderich in a dispatch to Lord Aylmer: “On the mode proposed His Majesty is willing to put no harsher construction than that of extreme inconsiderateness; to the object sought to be obtained, His Majesty can never be advised to assent, as deeming it inconsistent with the very existence of Monarchical Institutions.” The next step of a party in the assembly was to claim for the provincial parliament the authority of amending its own constitution. On March 3, 1836, the assembly resolved: That it is expedient to amend a certain Act passed in the Parliament of the Kingdom of Great Britain, in the thirty-first year of the Reign of His late Majesty George the Third, Chapter thirty one, as relates to the constitution and formation of the Legislative Council of this Province, and to substitute other provisions in the place thereof with the view of better ensuring the efficiency of the Provincial Government to provide for the peace, welfare and good government of this Province. A bill in accordance with this resolution was introduced but failed to secure a second reading. The imperial parliament also undertook to legislate in certain issues of common concern to the two Canadian provinces and in other matters of more particular interest to Lower Canada. To this local legislation the House of Assembly objected. An act passed in 1825 relating to the tenure of lands was considered by the assembly as contrary to the provisions of the Quebec Act, which had now come to be regarded as a fundamental law. By another British statute special privileges were granted to certain persons respecting the appropriation of the waste lands of the crown. The assembly questioned the right of the imperial parliament to legislate in such matters, claiming that the waste lands differed from the hereditary property of the crown and; as the public property of the state, were subject to the legislative authority of the provincial parliament. The attitude of the assembly to the exercise of the prerogatives of the crown and the supremacy of the imperial parliament was determined by the effect on its own pretensions rather than by a consideration of consti­ tutional validity. In its eagerness to extend its own authority, the

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representative branch of the legislature was not inclined to consider too seriously the rights of the bodies to which it found itself opposed. […] The Executive Councils Although the Constitutional Act and the commission to Lord Dorchester implied the creation of a separate executive council, its actual constitution was set forth in the instructions to the governorin-chief. The council in Lower Canada consisted originally of nine members; and in Upper Canada of four, while one more was added in 1792. In each case the quorum was fixed at three. The fact that several members of the council in each province did not reside at the seat of government, and that others who had judicial duties to perform were often unable to attend frequently, made it difficult for the governor to secure a quorum. To meet this situation Lord Dorchester suggested an expedient which found an important place in the constitution of the executive council in each province. The governor or lieutenant-governor, was authorized to summon by special writ honorary members to the executive council, who should perform the same duties as the regular members. The honorary members of the council received no salary, but it was accepted as the regular procedure that the senior honorary member should succeed to the first vacancy in the regular council. The constitution of the executive council received the special attention of Lord Dalhousie in the years 1820 and 1821. Lord Dalhousie wished to discontinue the practice of calling honorary members, and, by appointing the proper persons as regular members, hoped to be able at all times to secure a sufficient attendance. The reconstruction which he proposed provided a most interesting forecast of the organization of the cabinet of later date. He ­suggested that the council should consist of the chief justice of the province, the lord bishop of Quebec, the speaker of the House of Assembly, the civil secretary of the government, the attorney or solicitor-­ general, the auditor-general of public accounts, the receiver-general and the surveyor-general, together with four prominent men selected from the province. The general scheme of reform was approved by the Colonial Office, although objection was taken to the appointment ex officio of the speaker of the assembly. However,

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nothing resulted from this friendly suggestion of reform, and the executive council continued until the time of the rebellion to be an irresponsible committee nominated by the governor. […] From the establishment of the constitution an intimate connection was maintained between executive and the legislative councils. Two-thirds of the members of the executive council of Lower Canada, and the entire council of Upper Canada, were members of the legislative councils of their respective provinces. The appointments to the two councils were made by the governor or lieutenant-governor, and were confined, with very few exceptions, to the party supporting the administration. Membership in the legislative council in time came to be regarded as a preliminary to the appointment to the executive council. Members of the executive council occasionally found seats in the earlier assemblies of Lower Canada and served as a convenient means of communication between the governor and the legislature; but as the popular opposition to the governor grew, it became increasingly difficult for members of the executive council to secure election. The intimate personal connection which was thus maintained between the executive and legislative councils, and the identity of their interests at the time when the provinces were divided into hostile camps, destroyed popular confidence in the integrity and independence of the executive council. […] The relation of the judiciary to the other branches of government has undergone a vast change since the days of the old provinces of Upper and Lower Canada. The independence of the judges in its modem interpretation was entirely foreign to the pre-rebellion period. In fact, an intimate connection was maintained between the judiciary and the executive and the judiciary and the legislative bodies. Three of the eight active members of the original executive council of Lower Canada were judges, while two of these were at the same time members of the legislative council. In later years the two chief justices were members of both councils. In Upper Canada, while the relation between the judiciary and the councils was not at first so intimate, it soon produced the same situation as found in Lower Canada. The judges, nominally appointed by the crown, were selected by the governor or lieutenant-governor, and naturally were chosen from the party friendly to the executive. Primitive colonial

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conditions did not produce an abundant supply of men capable of properly performing the duties of a judge. The advantages upon which an opportunity, to secure the necessary training and qualifications depended were confined largely to the families which ­composed the government party. In Upper Canada appointments occasionally were made from the English bar, but, with a few distinguished exceptions, the judges selected from Britain were not such as to commend resort to the motherland. In Lower Canada the necessity of administering Canadian civil law served as a most effective barrier against the importation of judges. Local conditions, political and social, rendered it inevitable that the judiciary should be allied to the party which dominated the executive and legislative councils. The Legislative Council Legislative authority in the Canadian provinces was vested by the Constitutional Act in the governor or lieutenant-governor “by and with the Advice and Consent of the Legislative Council and Assembly.” The usual right of the governor to refrain, from assenting to any legislation was preserved, while the legislative supremacy of the king in council was maintained by the provision that any bill, even after having received the governor’s assent, could be disallowed within two years of the time of its receipt by the colonial secretary. Restrictions were placed on the authority of the colonial legislature to enact laws respecting certain special subjects. The Constitutional Act required that any provincial legislation respecting the clergy of the Church of Rome, the clergy reserves, the erection of parishes and presentation of incumbents, the enjoyment of religious freedom, or affecting the king’s prerogative in granting the waste lands of the crown, should lie before both houses of the imperial parliament for at least thirty days before receiving the royal assent. Likewise the provincial legislatures were restrained from passing any enactment which would interfere with the operation of British statutes regulating the trade and commerce of the empire. The legislative council consisted in Upper Canada of not less than seven members and in Lower Canada of not less than fifteen members appointed by the governor or lieutenant-governor of each province. None but British subjects over the age of twenty-one years were eligible for appointment to the council. In Upper Canada doubts

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arose regarding the citizenship of certain people who had emigrated from the United States, and an imperial statute was passed in 1826 rendering persons naturalized in the province eligible for appointment to the legislative council. Members of the council held their seat for life unless they took the oath of allegiance to a foreign power or resided outside the province for a specified term of years without the consent of the crown or its representative. In order to furnish it with fitting dignity, His Majesty was authorized to annex to hereditary titles of honour in the provinces the right of being summoned to the legislative council. In this manner the influence of the crown was to be preserved and the council was to be brought more into harmony with the traditional ideal of an aristocratic upper chamber. The council was given authority to determine all questions relating to its own constitution. […] The legislative council did not succeed in attaining the position of dignity and influence for which the fathers of the constitution so carefully provided. The crude conditions of a primitive colonial settlement afforded no support for a hereditary aristocracy. The comparative equality of possessions, and the lack of any estate adequate to the support of the necessary dignity of office, served as an effective check on the development of a colonial peerage. The colony was lacking in every clement necessary to the maintenance of a hereditary aristocracy. It possessed few traditions, and they, such as they were, were not of the kind to be appropriated for the support of an aristocracy; its families had not acquired the necessary wealth, and, above all, the social conceptions which the conditions of its development imposed were essentially democratic. At the time of the passing of the bill those who had any knowledge of the life of the colony vigorously opposed resort to the principle of hereditary appointments. The future demonstrated the wisdom of their judgment, for at no time was the right to a seat in the legislative council attached to any title of honour in either province. The legislative council, as was the case with the executive council, suffered from its complete subjection to the representative of the crown. It became degraded into the mere tool of the governor. Appointments were made with the sole purpose of adding to the influence of the crown. Only such legislation as the executive approved would the council permit to pass. Likewise bills proposed

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by the council which would excite either the fear or the jealousy of the assembly were conveniently suspended. Only such legislation as was absolutely necessary to the interests of the province, or was of such a neutral character as not to win the support or arouse opposition of either party, was permitted to become law. […] The legislative council occupied a distinctly anomalous position in the government of the Canadian provinces. Normally, its function as a second chamber would have been to provide a check on hasty and unfair legislation and to extend its protecting care over interests not represented in the popular assembly. In the case of the Canadas there was in the creation of an appointed council the added motive of safeguarding the authority of the governor, the royal prerogative and British connection by assimilating, as far as possible, the constitution of the colonies to that of the motherland. Unfortunately, the similarity of constitutions applied only to the outward form. The exclusive privileges and special training which fitted the peers of Britain for effective public service found no counterpart in the public life of the Canadian provinces. The Canadian councillors were not inspired by any such public interest as were the lords in England. Their appointment by a governor interested in certain class of legislation destroyed their independence. The council gradually became simply the executive acting in its legislative capacity. The result was that the influence of the council tended to defeat the very purposes for which it was created. The exercise of its power of protecting minorities and interests not represented in the assembly resulted in a deadlock, and heaped upon the council the odium which the suspension of the legislative function occasioned. Its complete subjection to the dictates of the chief executive, who, with few exceptions, was compelled to assume the leadership of a political party, destroyed popular confidence in its integrity as a branch of the legislature. To the opponents of the government it symbolized all that was most objectionable in the constitution, while the governor and the crown were, in no small measure, held responsible for the perpetuation of the constitutional maladies with which it was popularly associated. The popular discontent which was occasioned by the conduct of the legislative council, instead of enhancing the esteem in which the crown was regarded or strengthening the bond of British ­connection, rather encouraged and hastened the appeal to armed resistance.

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The Houses of Assembly The Constitutional Act created a House of Assembly within each of  the provinces of Lower and Upper Canada. The governor or lieutenant-governor of each province was authorized to divide the province into districts for the purpose of electing representatives. The Province of Upper Canada was divided by Lieutenant-Governor Simcoe in July 1792 into nineteen counties, which were to return sixteen members to the assembly. In 1798 a new division was made of the counties, while two years later the representation was increased to nineteen. In 1808 the membership of the assembly was further increased to twenty-five. An attempt was made in 1820 to introduce the principle of representation by population, when each county having a population of a thousand was given one representative, and when two scats were assigned to a county possessing 4,000 inhabitants. County towns possessing a population of a thousand were entitled to one member, while, at the same time, provision was made for the representation of a university whenever one should be established. A county possessing a population of less than a thousand was to be attached for electoral purposes to the next adjoining county having the smallest number of inhabitants. The result of this reform was that the assembly which met in 1821 contained forty members, representing twenty-seven electoral districts. In May 1792 Alured Clarke issued a proclamation dividing Lower Canada into twenty-seven electoral districts, returning fifty members to the assembly. The settlement of the Eastern Townships, and the rapid increase in the population of the cities, soon rendered this division unequal. The proclamation could be amended, however, only by an act of the provincial legislature or by the intervention of the imperial parliament. For political reasons the majority in the assembly did not take kindly to any scheme of redistribution which, by increasing the representation of the new districts, would add to the strength of the government party in the house. The imperial parliament did not consider it wise to interfere in a question which the provincial parliament was competent to settle. By a provincial statute of 1829, however, redistribution was made by which the province was divided into forty counties, while the divisions of the cities and towns remained unchanged. At the same time the basis of population for representation in force in the upper province was, in so far as it related to counties, introduced into Lower Canada. The cities of

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Quebec and Montreal were each given four members, the borough of Three Rivers two and the borough of William Henry one. The fourteenth parliament, which assembled in 1831, contained eightyfour members. The qualifications of the electors for both provinces were fixed by the Constitutional Act. The franchise was confined to persons of twenty-one years of age who were natural-born subjects of His Majesty or who had been naturalized by act of the British parliament, or who had become British subjects by virtue of the cession of Canada. A property qualification was demanded of all electors. In the counties it was the ownership of lands or tenements of the yearly value of forty shillings, and in the towns the ownership of a house and lot of the yearly value of five pounds or the payment of an annual rental at the rate of ten pounds sterling. Emigration from the United States into Upper Canada raised various questions regarding the right of these new subjects to the franchise. A provincial statute of 1800 made it necessary that persons who had resided in a foreign state in order to qualify as electors should, in addition to taking the oath of allegiance, have been resident in British dominion for four years previous to the next ensuing election and for seven years previous to future elections. This provision was retained in a general act of 1824 relating to the qualification of voters, but was suspended in 1834. Qualification for election to the House of Assembly was different from the qualification of voters. No property holding was required of members of the assembly. Members of the legislative council, ministers, priests or teachers of any form of religious faith were excluded, while the same conditions regarding naturalization were required as in the case of electors. In so far as it applied to the election of members of the House of Assembly of Upper Canada, the Constitutional Act was amended in 1826 so as to render eligible all persons naturalized by virtue of an act of the provincial legislature. In both Lower and Upper Canada the question of the eligibility of judges was the subject of much discussion. In the lower province, after the assembly had undertaken to expel a judge by its own vote, an act was passed declaring judges of the Court of King’s Bench to be incapable of ­sitting in the House of Assembly. A similar course was followed in Upper Canada, while at the same time it was declared that judges of the District Court, members of the Executive Council and the chief administrative officers should be disqualified, though their appointment was not to act as a bar to re-election.

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[…] The question of the extent to which a colonial legislature, and particularly the assembly of Lower Canada, could lawfully exercise the privileges of the British House of Commons was made the subject of a specific reference to the British law officers in 1815. To the question whether under the Constitutional Act the assembly of Lower Canada could claim any privileges, the reply was given that the members of assembly were entitled to “such Privileges as are incidental to, and necessary to enable them to perform their functions in deliberating and advising upon, and consenting to laws for the peace, welfare and good Government of the Province.” They were further of opinion that a colonial legislature was not entitled to all the privileges belonging by the Lex Parliamentaria to the House of Commons. The king by his charter could not grant such powers, “and though Parliament might, if it should deem it expedient, bestow them, yet, unless it has so specifically done, such powers cannot belong to them as incident to their Creation and Constitution.” The granting to the assembly of Lower Canada of the entire privileges of the imperial House of Commons, when followed to its logical conclusion, would have conferred on the legislative council judicial powers which would have conflicted with certain clauses of the Constitutional Act. The sovereignty exercised by the imperial parliament distinguished it from a subordinate legislature and rendered certain its privileges inapplicable to a colonial legislature. The law officers on this occasion undertook to enumerate the privileges which were incidental to the constitution of the assembly of Lower Canada, and included personal liberty, freedom from arrest in civil cases, a power to commit for acts of contempt, the freedom of debate upon the subjects of the laws to be enacted or considered, the power of expelling a member convicted of a crime, and the right to regulate and order their own proceedings consistently with the statute which constituted them. […] As in Britain, special conditions attended the consideration of money bills. No petition for the expenditure of money for the public service could be received unless it had been recommended by the governor. At the same time the assembly claimed that all grants of aid were the sole gift of the assembly, and that bills relating to supply should originate in the lower house and were not subject to amendment by the legislative council. In Lower Canada the issue arose as to

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what constituted a money bill. In 1793 the legislative council passed a bill providing for the appointment of returning officers, and imposing certain penalties for neglect of duty; but on its second reading in the assembly it was set aside and a new bill of the same tenor introduced, on the ground that as it laid a charge on the people, it should originate in the assembly. The council, though accepting the bill and yielding to the assembly the right to regulate bills of supply, disputed the application of such a principle to the imposition of penalties. In this view they were supported by the colonial secretary, and the assembly at a later period admitted its claim to have been excessive. It was the ambition of the legislative assembly to become the dominating factor in the government of the provinces. In Lower Canada resort was made to impeachment, but this applied only to occasional and exceptional conditions. The control of the payment of public servants presented a much more effective means of asserting the supremacy of the assembly in the administration of the government. Hence it was that the contest between the executive and legislative authorities, in Lower Canada especially, centred around the right to appropriating the public revenue. The position of the crown has already been stated. It claimed the right to dispose of its hereditary and territorial revenues, and of the proceeds of duties levied by imperial statutes and not specifically transferred to the provinces. In 1810, in an address to the king, the House of Assembly offered to raise all the revenue required for the public service. The object of the assembly was obviously to obtain an effective control over the public service, and, on the advice of Sir James Craig, the offer was not at the time accepted. As the interests of the colony expanded the cost of the administration of government increased out of proportion to the growth of the crown revenue. The result was that in 1817 the government felt compelled to state the case to the assembly, and to ask an aid to supply the deficiency between the crown revenues and the expenditure. The request for such an aid in no manner implied that the crown had surrendered its right to appropriate its own revenues. The crown submitted an estimate to the assembly, and in the following year a sum was voted to meet the deficiency. In 1821, however, the assembly followed a new procedure. A bill of supply was introduced containing appropriations, item by item, for each office in the public service. The rights of the crown vanished, and in their place was

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substituted the control of the assembly over all civil appointments. Nor was the legislative council slow to perceive the claims involved in the bill, and soon disposed of it as an unconstitutional invasion of the royal prerogative. In 1824 Sir Francis Burton, who was conducting the administration during the absence of Lord Dalhousie, considered that he had effected a successful compromise in a new bill of supply. The preamble disclaimed on the part of the assembly any authority to appropriate the revenue of the crown, while the enacting section of the bill proceeded to appropriate all the revenue irrespective of source. Technically the bill did not interfere with any right of the crown, yet when considered in the light of the motives of the assembly, there was reason to regard it as an invasion of the crown’s prerogative. The measure was disallowed by the king, and a deadlock resulted. The special committee appointed to consider the affairs of Canada recommended in 1828 that the control of the revenue should be vested in the assembly, on condition of its granting permanent provision for the administration of justice and the expenses of civil government. With this idea in view the funds arising from the Quebec Revenue Act were in 1832 placed at the disposal of the legislative council and assembly. The necessary guarantee of a  permanent supply was not given, and this last attempt at an ­agreement failed. The assembly claimed the power of appropriating the public revenues as an inherent right in the constitution of a British representative assembly. That such a right belonged of necessity to popular assemblies may well be questioned. Special historical conditions, which did not exist in Canada, were responsible for the measure of control exercised by the British House of Commons over the appropriation of the revenue. Such a claim on the part of the assembly was constitutionally invalid, in the light of the statutory rights of the British crown. The assembly, too, had interpreted the request for aid in 1817 as a virtual surrender by the crown of its control over the public revenue. The constitutional right of the crown, through its representative, to appropriate the revenue of the crown could not be assailed. The wisdom of the exercise of the right is subject to very serious doubt. But here the question of constitutional validity passes over into the field of political expediency. The government of the Canadas was a distinct factor in producing the crisis of 1837. The real constitutional grievance was not in the form of government but in the manner in which it was administered.

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The chief defects arose, not from the constitutional elements which had been given, but from those which had been withheld. The ­fundamental difficulty was the conflict between the legislative and executive authorities. The constitutional power of the governor in determining the composition of the legislative council aggravated the situation by virtually clothing the executive with double legislative powers. That it was not the written constitution which was at fault may be learned from a comparison between the government before the rebellion and after the union. It is true that theories of reform were advanced advocating a change in the written constitution, but these proposals were based on a misconception of the causes of the breakdown and on a false view of the character of the constitution. The causes of the rebellion were personal, not institutional. Yet the personal causes operated through institutions. The personal factor – the manner in which it was operated – made the constitution obnoxious. Similarly it was in the personal factor that a solution was sought. The constitution was to be operated in such a manner as to cause satisfaction instead of displeasure. Hence an extraconstitutional factor was introduced – the principle of responsible government. Responsible government in its essence is not an external form, but an attitude of mind. Hence also the remedy of the rebellion was not institutional but personal. In consequence of the rebellion, the British government decided to suspend for a period – until November 1, 1840 – the operation of the legislative council and assembly of Lower Canada. Legislative authority was vested in a Special Council appointed by the crown. The statute constituting the Special Council was silent on the question of the number of members composing the council, though the quorum was fixed at five. The first Special Council constituted by Sir John Colborne was composed of twenty-two members, whereas Lord Durham’s council of June 1838 was limited to five. Lord Durham’s use of the Special Council was considered as an attempt virtually to destroy its functions and to transfer them to the executive, and in consequence in the following year the membership of the council was fixed at not less than twenty, while eleven composed a quorum. The legislative power of the Special Council was confined within very definite limits. The governor alone was entrusted with the power of initiating legislation. The council was not empowered to levy any new tax, nor to pass laws affecting the constitution of the

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assembly, or the rights of elections or the qualification of voters. Unless continued by competent authority, the laws of the Special Council were limited to November 1, 1842. The amending act of the following year contained provision for extending the operation of the Ordinances of the Special Council beyond 1842, on condition that they remained before the imperial parliament for thirty days. In  all cases the right of disallowance was reserved by the crown in council.

Not e   1 Excerpted from Duncan McArthur, “Constitutional History,” in Canada and Its Provinces: A History of the Canadian People and Their Institutions, eds. Adam Shortt and Arthur G. Doughty (Toronto: Glasgow, Brook, ­1914–17), 4: 421–88.

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The Old Province of Quebec Alfred Leroy Burt 1

C h a p t er V The Establishment of Civil Government The cession of Canada created one of the greatest problems in the history of the British Empire. Hitherto the empire had grown chiefly by peaceful expansion, and settlement, and had remained substantially English and Protestant. Then, by conquest, it acquired a large territory where a people neither English nor Protestant had already established themselves firmly. How was this new and strange block to be fitted into the imperial structure? Except that they lived in America, the Canadians bore no resemblance to the inhabitants of the other British colonies, and they had nothing in common with the people of Britain except their new sovereign. They had a different religion; they spoke a different tongue; they sprang from a different race; they lived under different laws and institutions; they had a different outlook on life; they were the product of a different civilization. Under any circumstances, the difficulty of finding a form of government that would effectively incorporate this alien people into the British Empire would have been very great, and existing conditions conspired to make it greater still. Britain’s task would have been easier had France been a t­ raditional friend, but in those days France was the hereditary foe. Britain won Canada in the midst of what has been called the modern Hundred Years’ War. For a century and a quarter, from the English Revolution to the battle of Waterloo, Britain and France were fighting off and on. Another war might break out at any time. Would it not transform

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the Canadians into a hostile people? Until the early years of the nineteenth century this shadow darkened the problem of how Canada was to be governed. A second complication appeared on the morrow of the conquest when a small but important English-speaking minority settled in the towns of Quebec and Montreal. How could a constitution be fitted to the needs of all the people in Canada when they were divided by race, language, and religion? Must not the minority be squeezed or the majority oppressed? This dilemma was even more persistent and troublesome than the shadow already mentioned. It lasted until the  formation of the Dominion of Canada more than a century afterward. A third embarrassment lay in the juxtaposition of the old colonies. Relieved from the brooding fear of French power at their very doors, they no longer felt the need for dependence upon the mother country. Their new sensibility, combined with the wide divergence between their character and that of Canada, made it impossible for the British government to give justice to the people in the new colony without giving offense to the people in the old colonies. This further dilemma, which the home government did not see at this time, passed in the upheaval which rent the empire asunder, but the proximity of the old colonies, grown into an independent state, has continued to influence the constitutional development of Canada down to the present day. A fourth difficulty in the way of finding a satisfactory solution on the morrow of the peace was the gathering storm cloud in the west. In deciding what should be done with the new colony on the St. Lawrence, the home government was distracted by a vain desire to forestall the fierce native rising described in the last chapter. In approaching the Canadian problem, the British government could find no help in looking back or in looking forward. All they could look back to was Acadia, conquered fifty years before. But Acadia in 1713 was very unlike Canada in 1763. The former contained only seventeen hundred inhabitants, a mere handful compared with the sixty-two thousand in Canada. They sprang from another part of France, and in America they lived another kind of life. They were almost as remote from the Canadians in character as they were in position. Finally, British experience in Acadia, instead of shedding a light, threw a shadow across the minds of all who contemplated it. The tragedy of the famous, or infamous, deportation was not to be repeated. In looking forward, the British government of this time was quite as helpless because it lacked the insight of

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genius. Just when the highest statesmanship became most imperative, it became least possible. In the days of the Whig oligarchy, Britain’s political life was not very healthy, and now the accession of George III cast a blight upon it. Even the elder Pitt failed to see the necessity for reorganizing the very unsatisfactory machinery for handling colonial affairs. Responsibility for managing the overseas empire rested on the secretary of state for the southern department, who also directed. Britain’s foreign policy in southern Europe and shouldered the duties of the home office. In colonial matters he relied on the lords commissioners for trade and plantations, commonly known as the board of trade. This body, created by the king in 1696 and abolished by parliament in 1782, exercised a general supervision over the detailed administration of the colonies. Its only real authority was to appoint members of colonial councils. Otherwise, though it corresponded directly with governors, it was an advisory body acting through the secretary of state or the privy council. On May 5, 1763, the Earl of Egremont, who had succeeded Pitt as secretary of state for the southern department in 1761, asked the board of trade to work out a policy for the territories conquered in the late war and ceded by the peace treaty. He directed attention chiefly to North America. The Canadian problem was thus bulked with other problems, which had its advantages and disadvantages. Of the papers that Egremont supplied to the board, those which concerned Canada were copies of the treaty, of the two capitulations, and of three reports that Murray, Burton, and Gage had submitted on their respective governments in 1762. Murray’s report, which was twice the size of the other two put together, was a full and penetrating analysis. The solution which the board of trade evolved for ­Canada in 1763 is spread over three documents, the royal proclamation of October 7, Murray’s commission as governor, dated November 21, and his instructions, issued on December 7. The proclamation applied to all the new acquisitions and established the main outlines to be filled out separately for each new colony in the commission and instructions, which were framed with an eye to local conditions. All were digested together and might have appeared together had it not been for the unrest among the North American Indians. An effort to quiet their fears hastened the birth of the proclamation. The royal proclamation of October 7, 1763, in establishing and delimitating the new governments of America changed the name and reduced the size of Canada. Until the Constitutional Act effected

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another alteration, it was to be known officially as the province of Quebec. It covered much the same area as the modern province of Quebec, with which of course it must not be confused. Its boundary from Ristigouche Bay to the River St. Lawrence almost coincided with the present provincial line. From the St. Lawrence it ran straight to the southeast corner of Lake Nipissing, thus including a narrow strip of modern Ontario. From Lake Nipissing it struck northeast through Lake St. John and five hundred miles beyond to the head of the St. John River, then followed the southwesterly course of that stream to its mouth opposite the western end of the island of Anticosti. The northern boundary was purely arbitrary. It caused little concern to officials in England and none to people in Canada. The other boundaries were different; there was a reason behind each. The definition of the eastern boundary, the St. John River, may be traced to the terms of peace. By granting France the islands of St. Pierre and Miquelon, and by giving her subjects the right to fish in the gulf and to dry on the shores of Newfoundland, the treaty allowed France to retain in the region of the gulf a foothold that seemed dangerous, at least to official eyes in London. There were fears that it might encourage smuggling and possibly hostile encroachments in that quarter. Before the proclamation was issued, therefore, the Labrador coast as far west as the St. John River was severed from Canada and placed under the jurisdiction of the nearer and distinctly naval government of Newfoundland. The hinterland, which was then of no consequence, went with the coast as a matter of course. Being an accomplished fact, the change was automatically inserted in the definition of Canada’s boundaries in the proclamation. The southern boundary was drawn with the purpose of cutting off territory which the Canadians had not yet settled and from which they were to be excluded. It was thought that these lands, by being annexed to Nova Scotia and New England, might develop into a solid English colony. The new western boundary was considered the most important of all. It was fixed after deep discussion and as part of a high policy. Canada’s great hinterland was torn away to make possible the creation of a huge Indian reserve in the heart of the continent. This meant confining the old colonies to the Atlantic seaboard. Although some people regarded such a restriction as desirable for economic and political reasons of empire, and although the board of trade wished the expansive force of American society to operate laterally,

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up and down the coast, there is no evidence of any official desire to cramp the old colonies. The object of the board and of the government was the independence of the red man rather than the dependence of the white. The motive was really very simple. By preserving the hunting grounds of the savages from the intrusion of settlers, Britain might destroy the causes of Indian unrest and thereby save herself and her colonies from a deal of trouble. This policy was proposed by the board of trade in a report dated June 8. Five weeks later Egremont replied that the king agreed with the end but questioned the means. He pointed out the dangers of leaving such a large tract of land derelict. Without a government, it would attract fugitives from justice, it would lie open to the intrigues of foreign powers, and it would allow the development of disputes over property in the years to come. For these reasons he urged that it be included in the new government of Quebec. To this proposal the board raised three counter-objections in a report of August 5: it would imply a French origin to the title of these lands, and the implication might have awkward consequences, particularly upon the minds of the Indians; it would give the province of Quebec a commercial advantage over the other colonies; and it would endow its governor with too great a military power, for a large garrison would be necessary to hold such a vast region and the troops would have to be placed under the authority of the governor. The original objections, the report continued, could be obviated by commissioning the commander-in-chief to govern the territory for the time being. Other arrangements might be made later. These arguments prevailed and the boundary was drawn accordingly. Throughout the whole discussion there was no thought of locking up this territory to shut out white men entirely. The proclamation forbade the private purchase or occupation of any of these lands and ordered all who “either wilfully or inadvertently” had seated themselves there to remove forthwith. Apparently this command was not intended for the Canadians whose homes were already in the west, nor was it taken as such. It was aimed at the men who were hewing their way into the western forest – the backwoodsmen of the old colonies. While these farmers were to be excluded because they threatened to destroy the Indians’ means of livelihood, traders were to be encouraged because they united the interests of the natives, of the colonists, and of the mother country. Any trader was to be allowed to go into the interior if he procured a license and gave security that he

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would observe the regulations that might be imposed. Licenses were to be granted “without fee or reward” by the ­commander-in-chief or by any governor. Lest this freedom create a haven for outlaws, all military officers and officials intrusted with the management of Indian affairs were directed to seize fugitives from justice and to return them to the colonies where their crimes were committed. By an oversight, no provision was made for dealing with crimes committed in this territory. Two famous promises concerning the government of the new colonies were inserted in the proclamation. One was that they were to have general assemblies as soon as circumstances would permit. The other was that meanwhile all persons inhabiting or resorting to these new colonies “may confide in our royal protection for the enjoyment of the benefit of the laws of … England.” These promises bedeviled the Canadian situation for several years, and therefore it is necessary to examine why they were made and why they were put in this document. Their primary motive was to draw immigrants into these new members of the empire by guaranteeing an attractive form of ­government, and the guarantee was inserted in the proclamation because this was the most solemn, binding, and public method of giving it to those for whom it was intended. It is also interesting to observe that the reclamation, in making these promises, said something that was palpably untrue. It stated that the various governors, with the advice of their councils, were already empowered by instruments under the Great Seal to call assemblies and to erect courts “for hearing and determining all causes, as well criminal as civil, according to law and equity, as near as may be agreeable to the laws of England,” from which appeals might be carried to the privy council. The tense which made the above statement false was no mere slip of the drafting pen. It should have been true, and it would have been true had not the Indian question thrust itself forward. The proclamation was to have appeared after and not before the commissions. Grave consequences flowed from this inversion of order. […] The commission and the instructions issued to Murray followed the accustomed forms with variations and additions to suit local conditions. The commission, dated November 21, 1763, appointed him “Captain General and Governor in Chief” of the province of Quebec.

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As stated in the proclamation, it empowered him, with the advice of his council, to call assemblies and to create law courts, and also “with the advice and consent” of council and assembly to make laws for the colony. The council was simply taken for granted, as were also lieutenant governors of Three Rivers and Montreal. The whole government was to be Protestant, for the governor, lieutenant governors, judges, councilors, and assemblymen were to take the statutary oaths of office and declaration against popery. The commission gave no power to pass legislation before an assembly was summoned – an unfortunate omission. The instructions issued on December 7, 1763, directed the governor to establish a council composed of the two lieutenant governors, the chief justice of the colony, the surveyor general of the American customs, an eight others to be chosen “from amongst the most considerable” of the residents in the province. As the nominated members had to receive the approval of the board of trade, Murray was ordered to remit their names and also a list of eight others from whom substitutes might be chosen for rejected nominees. Similarly, whenever a council seat became vacant, the governor was to submit a list of three or more from which one might be selected. If for any reason the council ever shrank to less than seven members, the governor might increase it to that number, but the new appointees were to be subject to displacement by orders from home. The governor might suspend or remove councilors for “just cause.” As this authority was actually used, though not by Murray, the conditions prescribed by the instructions should be noted. Charges against members and their replies were to be examined in council. A majority vote was to decide. If it went against the accused, a full entry was to be made in the minutes. Copies of all papers bearing on the case were to be sent forthwith to the board of trade. The governor might act on his sole authority if he found reasons “not fit to be communicated to the council,” but then he had to make a report at once to the board of trade. More important still, because of its subsequent use, was a short passage inserted in a long section dealing with legislation by governor, council, and assembly. Until an assembly was practicable, the governor was directed “to make such rules and regulations, by the advice of our said council, as shall appear to be necessary for the peace, order and good government of our said province, taking care that

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nothing be passed or done that shall any ways tend to affect the life, limb or liberty of the subject, or to the imposing any duties or taxes.” Such rules and regulations were to be sent home at once for approval or disallowance. The council, of course, was to be an executive body. The instructions explicitly required its consent for such things as the granting of public lands and the passing of the public accounts. It was also to have a judicial function, though this was not expressly stated. That it was to be the final court of appeal in the colony was implied by a passage in the instructions which directed the governor to follow the precedent of Nova Scotia. The treaty guarantee of toleration was mentioned in the instructions, which enjoined the governor to observe it – with qualifications. Already he had been officially warned to watch this liberty closely. In August writing to tell him of his appointment to the government of the colony, Egremont had cautioned Murray against the political danger of allowing any connection between the Canadian clergy and the church in France, and he had pointed out that the clause about the laws of Great Britain excluded “absolutely all popish hierarchy in any of the dominions belonging to the Crown of Great Britain.” The instructions now forbade the admission “of any ecclesiastical jurisdiction of the See of Rome, or any other foreign ecclesiastical jurisdiction whatsoever,” and required a full report on the constitution, the claims, and the property of the church in Canada. That there was an ominous suggestion in these words appears clearly from a passage that follows almost immediately. “To the end that the Church of England may be established both in principles and practice, and that the said inhabitants may by degrees be induced to embrace the Protestant religion, and their children be brought up in the principles of it,” lands were to be set aside for the support of Protestant clergymen and schoolmasters, and the governor was to report “by what other means the Protestant religion may be promoted.” The home government entertained no design of persecution; it rather nourished the hope that Canadians might be brought to see the light. Another prominent feature of the instructions was the elaborate provision for planting settlers upon the soil of Canada. Some later writers have neglected this part of the document, which is long and very detailed, because nothing came of it, and in so doing have

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missed one of the most important points in the British government’s policy for the colony. As soon as possible an accurate survey of the province was to be made, and then townships were to be laid out. Each was to cover about twenty thousand acres and to have a town site, near which four hundred acres were to be reserved for a clergyman and two hundred for a schoolmaster. Applicants for lands were to satisfy the governor and council that they could and would improve the grants they might receive. The basic rate, which might be increased under special circumstances, was a hundred acres for every head of a family and fifty additional for each dependent. To receive and to keep their titles, grantees were to pay quitrents of at least two shillings per hundred acres and to improve their lands in a minutely specified manner. As soon as he could, the governor was to issue a proclamation advertising the conditions governing grants, and he was to take such steps as he thought proper for publishing it in all the colonies in North America. He was advised to insert in this document a “description of the natural advantages of the soil and climate” of the country and “its peculiar conveniences for trade and navigation.” All this has a clear and unmistakable meaning. The home government was anticipating a large influx of population from the congested colonies to the south. The program set forth in the proclamation, the commission, and the instructions may be summed up in one short sentence. An old French colony was to be remade into an English colony. This may seem strange in the light of certain statements made both before and after the policy was framed. In his long report upon the condition of the country, which he submitted in 1762, Murray said that nothing could contribute more to making the Canadians staunch subjects than the belief that their religion was absolutely secure; and two days later, in a letter to Egremont, he observed that the Canadians were not “ripe for such a government as prevails in our other colonies.” In its report of June 8, 1763, the board of trade proposed to govern Canada simply by governor and council – without mention of an assembly. The board also pointed that the Canadians “must greatly exceed for a very long period of time” all other settlers in the country, and it advised drawing in Canada’s boundaries to confine as closely as possible “the rights and usages already secured or that may be granted to the new French subjects.” Five years afterward Lord Hillsborough, who succeeded Lord Shelburne as head of the board

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of trade while the proclamation was being prepared, affirmed “that it never entered into our idea to overturn the laws and customs of Canada with regard to property.”

Not e   1 Excerpt from Alfred LeRoy Burt, The Old Province of Quebec (New York: Russell and Russell, 1970), 74–83. Original edition: Minneapolis: University of Minnesota Press, 1933.

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French Canada and the Early Decades of British Rule, 1760–1791 Michel Br unet 1

The Capitulation of Montreal (September 8, 1760), which as Professor A.L. Burt remarks should be called the Capitulation of Canada, fulfilled the hopes of the most ambitious leaders of the New England colonies and of the British empire. After a ruthless struggle lasting more than seventy years, the Anglo-Americans had triumphed. France and the Canadians could not obstruct any further the expansion of British colonization in North America. Both in London and in the American colonies, great rejoicing welcomed Amherst’s victory. From that moment, the leading political figures, both in the colonies and at home, worked to convince their compatriots and the imperial government that it was vital to retain Canada. Certain British statesmen and business men would have preferred the acquisition of Guadeloupe. There were two opposing conceptions of the British empire: that of a narrow mercantilism, according to which colonies only existed for commerce, and that which envisaged the growth of new Englands abroad, firmly linked to their metropolis. Those who dreamed of an Anglo-Saxon North America defeated the mercantilists. […] The judicious conduct of the British authorities greatly helped to reconcile the Canadians to the new regime. Amherst, Murray, Gage, Burton and Haldimand were prudent administrators, careful to reassure a population which had expected the worst. Official French propaganda had repeatedly stated that defeat would mean terror.

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But the measures taken by the military commanders aided a rapid return to normal daily life. The militia captains continued to exercise their former functions, the tribunals established by the victors rendered justice according to the established laws of the colony, the clergy had freedom to attend to the spiritual needs of the faithful, trade regained its former vigour. The inhabitants of the colony had only one thought: to profit from the return of peace to repair the damages of war. The long conflict had left behind it much destruction and a general apathy. The death of Bishop Pontbriand, four months before the Capitulation of Montreal, placed the clergy in a particularly delicate situation. Bigot’s administration as Intendant had made the French regime very unpopular during its last years. The bankruptcy of Louis XV’s government, which had only redeemed a portion of the paper money and bonds drawn on the public treasury, had increased the chaos and augmented the discontent of the population. The victors had before them an exhausted populace, ready to be governed. All circumstances and factors helped to render the establishment of British rule easy.

Th e K i n g I s D e a d – L o ng Live the King French Canadians showed in general no astonishment when they learned of the ratification of the Treaty of Paris. The clergy and the middle class hurried to acclaim the new king given them by the fortunes of war. At that period the prestige of monarchical institutions was of a kind that those living in the second half of the twentieth century find difficult to understand. For the Canadian leaders of the eighteenth century, the king was the source and symbol of all power. Society, they thought, could not exist without monarchy, which they believed sincerely to be the will of God. This idea formed part of the mental equipment of the principal societies of the North Atlantic world. Under such circumstances, the support of monarchy formed a rallying point and a bond between the leaders of all western countries. The historian must take this factor into account when he observes the behaviour and reactions of the clergy and the leading spokesmen of the Canadians on the morrow of the Conquest. The elite of Canadian society showed a spirit of open collaboration with the victors. Immediately after the surrender of Quebec and Montreal, several young girls married officers of the victorious army.

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A few people were shocked but they represented the opinion of a minority. Canon Briand, grand vicar of the district of Quebec, ordered prayers to be said for George III at mass, even though the peace negotiations had not been concluded. To those who expressed astonishment at his decision he replied that the British “are our masters; and we owe to them what we owed to the French when they ruled.” The Treaty of Paris could only confirm the leaders of Canadian society in their desire to collaborate with the British authorities. In any case, as long as they continued to live in the colony, they had no opportunity to do otherwise.

E m i g r at i o n a n d t h e D e c a pitation of Society Canadians of the upper class, who refused to submit to the victors, emigrated. They foresaw that their personal future was compromised in a colony where the principal channels of social promotion would, in future, be occupied by the British. The former administrators did not have to rack their brains overlong to discover who would succeed them. The most powerful business men understood that their enterprises would not prosper within the British commercial system. It is true that some of these emigrants were forced to return to France in order to account for their administration and their scandalous fortunes. Nevertheless, only a few of those who left Canada were functionaries and traders guilty of embezzlement. The majority was drawn from honourable families who did not wish to suffer the humiliation of foreign occupation and who wanted to keep all the advantages which the French empire provided: royal pensions, access to public office, business relations with the capitalists of the metropolis, official protection, contracts with the government and so on. It has been calculated that at least two thousand Canadians left their native land during the ten years which followed the surrender of Montreal. Can one speak about the loss of social leadership? Some historians, building upon the fact that the emigration of the ruling class was not overwhelming, maintain that Canadian society retained its form. Have they asked themselves what became of the former leaders who remained in Canada? Their fall, which was inevitable in a vanquished colony where a new body of administrators and executives of British origin was being assembled, is the most striking social phenomenon of the first generation after the Conquest. Canadian society no

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longer offered its most ambitious and dynamic members either the opportunity or the means to win prestige in public life. During the French colonial era, no career was closed to the Canadians. The French empire counted upon their help to continue and prosper. The situation was completely different under British rule. The administration, the army, the navy and external trade were all preserves of the British. The Canadians could not meet the competition of newcomers who came as conquerors. It could not be otherwise. The Canadians had to learn to limit their ambitions and their horizons, which shrank to fit their diminished chances of social success. Deprived of the indispensable backing of its mother country, left to its own resources, submitting to the rule of a foreign upper class, French Canada lived in a state of subordination.

H o p e s a n d D r e a m s o f the Canadians For the majority of the population there was no question of emigration. Faithful to the monarchic ideal, they recognized George III without protest as their new sovereign. However, in giving their allegiance to the king of Great Britain, the Canadians had no intention of renouncing the right to define and protect their own interests. The clergy, conforming to the traditional teaching of the Church, were ready to have Te Deum’s sung to celebrate the peace and to do homage to “the legitimate authority.” At the same time, they counted on the latter for the nomination of a bishop and the freedom to exercise their ministry. The seigneurs and the Canadian officers, to whom the defeat meant loss of prestige in the eyes of the habitants and the militia, deluded themselves into thinking that the British government, following the example of Louis XV, would have recourse to them for the administration and defence of the colony. The Canadian business men, delighted by the departure of Bigot, his associates and favourites, hoped to improve their lot quickly. Had they not been told that the colony, thanks to its entry into the British market and to the freedom of trade which the English practised, would experience soaring prosperity? They had, for a few short years, the naïveté to imagine that they would be the principal beneficiaries of this upsurge of economic activity. They were soon to realize that their British competitors were basically the only ones equipped to benefit from it. Also, the middle-class Canadian traders who remained in the colony, influenced by the British business men who

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were coming in, had convinced themselves they would supplant the seigneurs in the social hierarchy. As to the lowest strata, that is to say the immense majority of the population, what did they think? First of all, there was a strong impression of having been betrayed by those in authority. The latter suddenly appeared as being unworthy of their honours, their privileges and their responsibilities. In all societies, the immediate consequence of an unsuccessful war is a loss of authority and prestige by the former governing class. This particular group, however, as well as having been defeated on the battlefield, had to suffer occupation by the victorious army and had to collaborate with it, and thus lost even the possibility of regaining popular support. But the Canadians had no other leaders to whom they could give their loyalty. Obedient to both their seigneurs and clergy, they echoed “Long live the king!” At the same time, they took refuge in a state of passive resistance. Both the British authorities and the Canadian leaders realized this when an attempt was made to raise a volunteer battalion to help suppress Pontiac’s rising (1764). The militia, in spite of alluring promises, showed no haste to enroll. The people, although submitting themselves to George Ill, felt no obligation to serve the interests of their enemies and conquerors. Sooner or later, they thought, the “Londoners,” the English, would be forced to quit the country.

Th e F a i l u r e o f t h e R oyal Proclamation A royal proclamation of October 7, 1763, announced that Canada, along with other new British colonies, was to have an elected assembly and that its inhabitants could expect “the enjoyment of the benefits of the laws of … England.” General James Murray, who had been military governor since October 1759, was appointed civil governor of the colony, now called the Province of Quebec. His instructions (December 7, 1763) provided for a council including, besides officials, eight of the “most considerable” residents of the colony appointed on his recommendation. Murray was instructed to honour the treaty guarantee of religious toleration, but not to allow any papal or “any other foreign ecclesiastical jurisdiction whatever.” He was also to have vacant lands surveyed in townships and to publish regulations for granting land in English tenure, the grantees to pay quit-rents. Quebec, in fact, was to be remade into an English colony.  This programme, intended to attract immigrants from the

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comparatively crowded English colonies to the south, simply did not face the fact that the Canadians formed more than ninety-nine per cent of the white population in the St. Lawrence Valley. Murray, sympathetic to the Canadians but obedient and unimaginative, attempted to obey his instructions impartially. The result was the total disorganization of justice. The Canadians were delivered into the hands of judges and officials who were ignorant or contemptuous of their language and traditions, and some of whom exploited them shamelessly. The governor tried to set limits to the havoc by recognizing the right of Canadians to jury service and by creating lower courts. In them the judges were to take notice of French laws and customs and Canadian lawyers (who, being Catholic, could not practice in the Court of King’s Bench) were allowed to represent their clients. The concession to the “natives,” however, was stated to be only temporary. Those who could legitimately regard themselves as the leaders of the Canadian community discovered, not without astonishment, that they had no public rights in their own country. The Test Act barred them, as Catholics, from careers in the administration, whether as councillors or as mere justices of the peace. They were totally ignorant of the English law which now replaced their own. Surely, they thought, their willingness to collaborate and their protestations of loyalty to the Crown merited greater consideration than this? Murray, realizing that the number of British colonists was too small, decided to postpone the election of an assembly. This brought him the enmity of the group one can call the English party. The British merchants and adventurers who had come to Canada immediately after the Conquest expected, for the most part, to become its ruling class. They had been patient during the military regime, but they regarded the establishment of civil government (which came into force on August 10, 1764) as the beginning of their triumph. They had expected to dominate the assembly which Murray now postponed and to control both the Canadians and the officials sent out from Great Britain. They expressed their disappointment in a manifesto of the Grand Jury of Quebec (October 16, 1754) and in petitions sent direct to Westminster. Murray, in response, moved closer to the Canadian leaders and defended them before the imperial government. At the same time, he was plagued by the hostility of the military commanders, who were themselves also at odds with the spokesmen of the British mercantile community.

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Some members of the British minority were well-disposed towards the Canadians, and formed a political group called the “French party.” The most influential of these advocates of paternalism was Adam Mabane, a Scottish surgeon who in 1764 was appointed a judge and a member of the governor’s council. With this support and with Murray’s, the Canadians demanded from the imperial government the redress of their grievances. The British ministers had begun to doubt the wisdom of their policy towards His Majesty’s new subjects in the Province of Quebec. Since they had no intention of persecution, deportation or liquidation, they were forced, while guarding the fundamental interests of the British empire, to take into account the presence of the Canadians. They were willing, for example, to accept a bishop recognized by Rome and consecrated in France. Canon Briand, who had been one of the vicars-general chosen to govern the diocese after Bishop Pontbriand’s death, was allowed after several months’ waiting in London to seek consecration discreetly. In June 1766 he returned as the head of the Canadian clergy. In the same month Murray, who had been recalled, left Quebec.

U n d e r t h e B e n e vo l e n t Rule of Carleton The Canadians had thus scarcely found a protector when he was removed. Sir Guy Carleton replaced him. Carleton was ambitious, able and intent upon demonstrating his administrative capacity. From the beginning he sought, by both force and flattery, to impose his authority on all parties. Authoritarian by nature but pliable when necessary, he was soon in control of the situation. He succeeded in convincing all parties that he was their ally and all agitation ceased. The lieutenant-governor – he did not become governor until the beginning of 1768 – decided almost immediately that the royal proclamation and the instructions written for his predecessor were inapplicable. He was shocked by the chaos in the administration of justice. He found the pretentions of the English party unacceptable. He thought it impossible to govern the colony without recourse to the services of the Canadian leaders. Thus he proposed to re-­establish at least French civil law, to maintain the seigneurial system, to give legal recognition to the tithe and to include Canadians in the conduct of public affairs. He took care, however, to state that they should play only a secondary role. There should be no elected assembly; all legislative power should

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lie with the governor and his council, whose members would be appointed by the Crown. Some Canadians would be named to it. This policy was finally implemented in the Quebec Act of 1774. Carleton’s paternal despotism fulfilled the dreams of the principal Canadian leaders. In particular, Carleton received the enthusiastic support of the higher clergy, who in the circumstances of the moment were the most influential representatives of the Canadian community. A personal friendship grew up between Bishop Briand and the governor. Some Canadians, it is true, recognized and mistrusted the way in which Carleton’s programme led to enhanced personal power for the governor. These critics were accused of envy for their compatriots whom the governor had honoured with his confidence. They were reproached, too, with falling under the influence of the English party. The British merchants were still demanding an assembly, but they were now willing to accept one elected by the whole population, and containing some Canadian members. For the Canadian community, the choice was thus between the paternalism of the governor and that of the English minority. The Quebec Act definitely instituted the former.

T h e E r a o f M u t ua l Dis appointment In Carleton’s view, the vital problem was to build confidence between the Canadian population and the British authorities. It was necessary to end the misgivings and disorder arising from the royal proclamation, the sudden introduction of English law, the exclusion of Canadians from the administration and the agitation of the English party. Carleton knew that this could only be done with the support of the clergy and the seigneurial class. How else could a foreign power establish itself in a country except by ensuring the co-operation, or at least the neutrality, of its former leaders? By the Quebec Act, Carleton won the confidence and obtained the co-operation of the Canadian elite. It appeared at first as if he had hoped to get even more than this. While he was formulating his programme for Quebec, the thirteen American colonies had been moving towards rebellion. As a soldier, Carleton wanted to make his province a secure base for a British army if it should have to re-establish order in the American colonies. Further, he imagined that the Canadian militia would contribute to

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the defence of imperial authority, or at least protect the St. Lawrence valley from rebel attack. The seigneurs and the higher clergy encouraged his hopes. They did not realize, or would not admit, that the bulk of the population offered a kind of passive resistance to the British occupation. When the American invasion came, Carleton and the Canadian leaders suffered a bitter disappointment. In general, the people refused to take up arms, despite the authoritative appeals of bishop, clergy and seigneurs. The Canadians took the occasion to show their hatred of or indifference to the English and their mistrust of those who co-operated with them. On the other hand, the Americans had nothing to offer; while the rudimentary equipment and poor organization of their forces did not escape notice. Most of the population adopted a prudent neutrality. The entry of France into the war on the side of the Americans (February 6, 1778) created a particularly delicate situation. The majority of the people expected, hopefully, that their former mother country would re-conquer the colony. The Canadian leaders lived through several months of anguish. While they hoped spontaneously for the defeat of British arms, prudence recommended that they show themselves submissive to the government of George Ill. Haldimand, who succeeded a disappointed and frustrated Carleton in 1778, had good reason to be nervous and suspicious. Neither the Canadians nor the British administrators knew, at this point, that the French government had no intention of demanding the return of Canada. In 1783, many Canadians considered the Treaty of Versailles a further betrayal by France. It was difficult for them to understand why she had not used her victory to return and continue her work of colonization in the St. Lawrence Valley. Their reaction sprang both from a completely natural attachment to the country which would always remain in their eyes the mother country and from anxiety concerning their continued existence as an ethnic entity. It did not take into account the demands of international politics which France had to heed. […]

T owa r d s C o n s t i t u tional Ref orm Both Canadians and colonists of British stock were in favour of a revision, either minor or major, of the Quebec Act. Even its most ardent

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Canadian supporters – whose support was not always disinterested – admitted the necessity for some kind of alteration and reform. The aims of the Canadian leaders did not alter: to consolidate and to increase the influence of their community, which formed the largest part of the population. Naturally, this meant more prestige and power for those who had either the right or the ambition to become the spokesmen for the community. However there was a considerable lack of agreement as to the best means to achieve this end. Conservatives, who feared to set out on a new path, wanted to keep the Quebec Act as a charter of Canadian liberties. They contented themselves with a demand for greater Canadian participation in the government of the colony, in order to protect the established order against the introduction of English laws and institutions. The return of Carleton, who became governor for a second term in 1786, raised great hopes among the members of the “French party,” whose influence had been declining during the past few years, and among the Canadian leaders who counted on his paternalism to uphold and extend their privileges. A few had even imagined that a Canadian would be named lieutenant-governor. This group dreamt of a colonial government created and maintained by the British Crown, but operated by Canadians. Another group, whose origins can be traced to the period ­1770–74, did not put all their hopes in the benevolence of a governor backed by a council favourable to Canadian interests. Its members tried to understand what the benefits of a system of representative government would be for their compatriots. They were not afraid of the idea. On the contrary, since they realized that numbers would inevitably favour them, they concluded that an elected assembly should be adopted. The members of this reform movement represented a new wave of Canadian leaders, who dissociated themselves from the seigneurial and military class of the first generation after the Conquest. The majority belonged to what we would call today the middle class: small shop-keepers – very few among them had the stature or influence of big business men – notaries, lawyers, surveyors, book-keepers. A few seigneurs supported them. Several of the higher clergy sympathized with them and helped circulate their petitions among the populace. These reformers had no sympathy for the Canadian favourites of Carleton, Haldimand and Hope (lieutenant-­ governor, 1785–86). They rejected, too, the tutelage of the remnants of the “French party.” In fact, the Canadian community had discovered new spokesmen.

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T h e C o m p l a i n t s a nd Plans of t h e B r i t i s h Merchants The Quebec Act had never been accepted by the principal leaders of the colony’s British minority. The royal proclamation of 1763 had promised them their rights as British subjects. The Act, they thought, abandoned and betrayed them. It placed them under French civil law and under a colonial government not supported by an elected assembly. Every other British colony in North America enjoyed representative institutions. They considered the powers of the governor and council under the Act to be arbitrary. Conscious of the central role they played in the economic development of the St. Lawrence Valley, they were nevertheless confronted by a colonial government over which they had little influence. Their indignation reached new heights when they found that Carleton had concealed instructions to introduce some English commercial law, trial by jury in certain civil cases and the privilege of habeas corpus. During the War of Independence, the British minority had to hold back its complaints. Several of its members had shown sympathy for the rebellious colonies before and in particular during the American invasion of Quebec. This, fully exploited by its opponents, had brought the English party into disrepute. With the end of the war, the need for cautious silence was over. The British minority had grown in numbers and could count on powerful friends and protectors in London. Post-war financial difficulties made the merchant community more aggressive. The Treaty of Versailles, moreover, limited the expansion of their trade in the interior. The coming of the Loyalists, whom they naturally sought to take under their protection, strengthened their position. In sum, the British merchants, like the Canadians, decided to indulge in an examination of the Quebec Act. In a petition of September 30, 1783, they asked for the immediate repeal of the Act and for a constitution that would make Quebec, at last, a true British colony. […]

D o rc h e s t e r a n d S m i t h against Carleton The hopes raised by the return of Carleton have already been described. Now elevated to the peerage as first Baron Dorchester, he arrived at Quebec at the end of October 1786. He might have united

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under his paternal yoke all the spokesmen of the Canadian community; but Dorchester no longer had the same ideas as Carleton. In 1774 he had worked for the adoption of the Quebec Act because he thought it would serve the best interests of the British empire in North America. He had not believed that a British colony could be founded in the St. Lawrence Valley and had therefore not hesitated to ignore the claims of the British minority settled there. Its members, in his view, were simply adventurers come to seek their fortune in a newly conquered territory; he had even supposed that they would not stay long. Twelve crowded years later, Dorchester brought a new perspective to his old post. There was now a British population in the St. Lawrence Valley, reinforced by Loyalists, for whose welfare he had shown himself concerned while commanding the British troops in New York. It was now his mission to consolidate British colonial efforts in North America. There were some, their faith in the British empire unshaken by the War of Independence, who were determined to create a prosperous and dynamic British North America – one that might even make the Americans regret their break with the Crown, William Smith, lately Chief Justice of New York, was one of the most eloquent of such imperialists; he had won Dorchester’s confidence and was appointed Chief Justice for the Province of Quebec. It was not long before his influence was felt in all parts of the administration. Dorchester wanted to correct, according to the advice of Smith, the work he himself had done as Carleton. His freedom of action was however somewhat limited and he never rose to command circumstances as he had done during his first administration. The change in his conduct was the result of his personal dilemma. He was reluctant to break with his old allies and supporters, who counted on him to defeat the reformers and the English party. At the same time, he recognized the necessity of reform. Realizing that the American continent favoured democracy, he nevertheless retained many aristocratic ideas on the proper distribution of power. Alive to the demands of the present, Dorchester thus remained to a certain extent a prisoner of the past. This, far more than the poor state of his health, explains why he lacked energy and decisiveness during the critical period 1787 to 1790. In those years the struggle between the different parties – the “French party,” the seigneurs allied to it, those Canadians who wanted a slight improvement in the Quebec Act, those Canadians

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who wanted an elected assembly and the English party – became more intense. Acrimonious debates were raised by Smith’s interpretation of the Quebec Act in one of his first decisions as president of the Court of Appeal, by his criticism of the judges of the Court of Common Pleas, by the inquiries he started into the administration and by his proposed reforms, particularly in the field of education. Even within the Canadian community, public opinion was deeply divided. The advocates of constitutional reform, profiting from the confusion, acquired greater influence and new confidence. The Citizens’ Committees, which had spokesmen in London, redoubled their activity. […] The imperial government, which had wavered for a long time, at last decided to amend the Quebec Act. Buffeted from all sides by contradictory demands and not very well informed on the real state of the colony, the ministry drafted the Constitutional Act. This piece of legislation did not reverse the Quebec Act. It provided a bicameral legislature: an appointed Legislative Council and an elected assembly. At the same time an order-in-council, signed on August 24, 1791, created the two separate colonies of Upper and Lower Canada. The British merchants of Quebec, Three Rivers and Montreal, who for over twenty-five years had demanded their rights as British subjects, learned with stupefaction that the imperial government had upheld the major part of the Quebec Act and that it had separated them from the Anglo-Protestant population established in Upper Canada. They had not foreseen the division and had every reason to suppose that their interests, both as merchants and as an ethnic minority, would suffer from it. They tried, but failed, to prevent it. They persisted, nevertheless, in their usual expectation that the Canadians would accept their paternalism without much resistance. The more optimistic of them managed to believe that the assembly in Lower Canada, with a majority of Canadian members entirely ignorant of parliamentary institutions, would be easy to dominate. Although the “French party” had been defeated, the ­victory of the English party was incomplete. As for the Canadian leaders, if one omits the seigneurs linked with the “French party,” the few beneficiaries of government patronage under the Quebec Act and those who did not grasp the opportunities of the new constitution, they were largely satisfied. A few were even enthusiastic. French civil law remained in force, the clergy

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retained the rights acknowledged by the Quebec Act, some Canadians at least would continue to be appointed to public office. The franchise for the new assembly was wide, and those Canadians who had been involved in the Citizens’ Committees were particularly well aware of what numbers would mean in a democratic regime. The division of the province was welcome, both for its guarantee of a continued Canadian majority and for the chagrin it caused the English party. The Canadians, particularly the new middle-class spokesmen, foresaw that the new constitution would confirm the rights already recognized by the Quebec Act; for it provided new and more powerful methods of collective action. It remained to learn their use. By undertaking a political apprenticeship, the Canadian spokesmen were able gradually to develop an effective opposition to the English minority and to British officials. A new era had begun in the  history of French Canada and of British colonization in the St. ­Lawrence Valley.

Not e   1 Excerpt from Michel Brunet, French Canada and the Early Decades of British Rules, 1760–1791 (Ottawa: Canadian Historical Association, 1981), 18. Originally published in 1963 in French and in English by the Canadian Historical Society.

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The Quebec Act: A Magnanimous Concession, or a Self-Interested Gesture? Séraphin Marion 1

The history of Canada probably provides no better example than the Quebec Act of a question that has remained mired in controversy. […] Both French and English Canadians attach the utmost importance to the Quebec Act, which established the foundations for legislative government along the shores of the St. Lawrence. Mason Wade considers the British Commonwealth of Nations an “outgrowth” of the Quebec Act, while Carl Wittke detects, in the Act, the source of the alliance between the Catholic Church and the Quebec state: “It prepared the way for that close alliance between Church and State which still complicates the affairs of French Canada.” Last, Chester Martin suggests that Quebec separatism can be traced back to the Quebec Act: “The Quebec Act … introduced into Quebec an exotic tradition of racial separatism.” If this is true, then Quebec separatism is already almost two hundred years old. And furthermore – an even more piquant consideration – if this eminent Anglo-Ontarian historian is right, it was brought into being by an Act passed in London. At this point a fascinating question arises: was this Great Charter, the foundation for the Catholic freedoms of His Britannick Majesty’s new subjects, this Sacred Charter of the French Canadians, a magnanimous concession or a self-interested gesture? If magnanimity was the determining motive for the Act, French Canada incurred a debt of gratitude towards England. If, on the other hand, self-interest was the secret mainspring of the operation, then the document needs merely to be noted before drawing the necessary conclusions.

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In short, we have two opposing theses: generosity and self-­interest. Several English-speaking historians, in both England and Canada, support the first idea. A. Wyatt Tilby rejoices in the fact that the British government decided, in 1774, to “act generously.” Edgar McInnis writes: “The Quebec Act has been praised, and with considerable justification, as a measure of unprecedented generosity,” while B.K. Sandwell notes that many observers support a similar position: “Persons unacquainted with the history of North America sometimes express surprise that the ‘conquerors’ allowed so large a measure of freedom to the ‘conquered’.” The originator of this idea was William Knox, no ordinary observer. A born polemist and polished diplomat, he acted as right-hand man to every Secretary of State who headed the American Department, in London, from its creation until its abolition in 1782. Chester Martin calls him the “principal actor in the executive Government” of the time. Knox was given the mission of defending and justifying the Quebec Act, a task he accomplished brilliantly in a brochure published in London in 1774, entitled “Justice and Policy of the Quebec Act.” The brochure describes the Act as a “measure of benevolence and humanity” and a mark of “lenity and indulgence.” It is appropriate  to mention here that, after giving assent to the Act in 1774, George III used a similar phrase in his speech, declaring that the Act was “founded on the clearest principles of justice and humanity.” Here is the genesis of the thesis that Britain acted with generosity towards the French Canadians of 1774 and their descendants. Chester Martin sums up the situations in two sentences: “Oppression had been disastrous in Ireland. The effects of lenity were now to be tried in Quebec.” This appears to imply that the British government, after its disastrous experience in Ireland, had reduced the harshness of its approach. From now on clemency, indulgence, and humanity were to become the alpha and omega of its policy towards its colonies and minorities. It is interesting to see how skilfully Chester Martin demolishes these assertions. George III’s apparent benevolence is hard to reconcile with the four “Intolerable Acts” passed during the same session of the British parliament and directed against the American colonies. “It is not easy to fit King George into this picture,” he concludes. It is also hard to see Attorney General Wedderburn as a

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promoter of benevolence and indulgency. After becoming Lord Loughborough in 1801 – in other words a quarter of a century after the passage of the Quebec Act – he was one of the people who persuaded the King to ignore the solemn promise given by Pitt to the Roman Catholics concerning union with Ireland. In addition, Knox’s Official State Papers, published in 1789, reveal the secret aims – unavowable in 1774 – behind the British government’s conduct towards its American colonies. Chester Martin finds Knox in flagrant contradiction with himself: “The sort of justice and policy which Knox professed for Quebec ill accorded with the policy which Knox himself … was known to advocate for the other colonies in America. The key of that policy, from beginning to end, was authority vindicated if necessary by coercion.” Another historian concludes that this double-faced policy was inherently contradictory. “No motives other than ulterior will serve entirely to explain why a government headed by Lord North and the servants of a ‘patriot King’ handed out ‘justice and humanity’ to the French Canadians … while at the same time and in the same parliament they were goading their own flesh and blood into the shambles of civil war.” Anyone still seeking decisive proof should note the following observation. If benevolence, indulgence and humanitarianism truly guided the actions of the British government in 1774, how can the emancipation of Canadian Catholics in 1774 be reconciled with the fact that emancipation was refused, for the following fifty years, to Catholics in the British Isles? Why was the sovereign remedy applied in Canada in 1774 considered a dire poison in Great Britain at the same time, and for the half-century to come? To paraphrase Pascal: “what is truth here may be falsehood there.” Over the last one hundred years, many French-Canadian historians have promoted the thesis of English generosity towards French North America. This should come as no surprise when we remember that the idea was nursed through its emergence and development by one of the greatest bishops of the diocese of Quebec, Father JosephOctave Plessis. As Rector of Quebec, he gave an address at the funeral of Monsignor Briand in June 1794, in the form of an “oration permeated with warm loyalism” according to Mason Wade. As he scaled one of oratorical heights so beloved of our forefathers, he uttered from the pulpit the celebrated formula “Generous Nation!” with ­reference to England. This epithet, so solemnly pronounced, was

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to enjoy a brilliant career during the 19th and even into the early 20th century. Generous Nation! Monsignor Briand clearly knew nothing of Ireland’s history. Roughly one century later, D’Alton McCarthy, the fiery Ontario Orangeist, exclaimed: “This is a British country, and the sooner we take up our French Canadians and make them British, the less trouble we will leave for posterity.” This was opposed by O.D. Skelton: “The difficulty could not be solved by the Tory method, by following the fatal example of English statesmen who for seven hundred years had attempted to make Ireland British, not by justice and generosity but by violence and oppression and had failed.” Generous Nation! The phrase is not to be found in the first volume of the course on Canadian history given by Thomas Chapais at Laval University, which he published in 1919. However, the FrenchCanadian historian could easily have placed the remark by Father Plessis as an epigraph to his book. On page 169 of Volume 1, Thomas Chapais candidly admits that “this way of seeing things has apparently surprised some of my listeners.” A significant admission! He confirms that not all his listeners supported the thesis of British generosity, and were not slow to make their views known. Chapais was careful not to treat this reaction from a select audience lightly and, unusually, page 169 contains only six lines of his course. The remainder of the page, and half of the two following pages, is devoted to a justification of his position on the Quebec Act. […] The policy was therefore not one of tolerance or generosity, but clearly one of assimilation, a mere three years after the Conquest. According to Arthur Dorland this was a brutal project, which could have had dire consequences for Anglo-Canadian imperialism. “If the policy of 1763,” Professor Burt writes perspicaciously, “had been developed and enforced, instead of being abandoned, it might have driven Canada out of the British Empire and into the American union.” The Instructions sent to Governor Murray set out a subtle approach to making French Canadians into Protestants, and Professor Burt does not deny this. Some parts of the Instructions appear to him to be “ominous” for Catholicism in Quebec: “To the end that the Church of England may be established both in principle and in practice, and that the said inhabitants may by degree be induced to embrace the Protestant religion and their children be brought up in

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the principles of it.” Here, Protestant proselytism shows its face shamelessly. To the credit of the British government, Professor Burt adds that the objective was never, at this point, to persecute Catholics, but rather to bring them to see the light. Even so, London’s actions were at the opposite end of the scale from tolerance and generosity. […] This official attempt to anglicize and protestantize the Canadian people was, as we all know, a resounding failure. Two reasons explain the victory of the Canadians. The first was the failure of the plan to bring large numbers of English-speakers to Canada from further south. The large-scale immigration of colonists proved impossible, despite the orders from Britain and the best efforts of Murray, Carleton and Haldimand, who all had to bow to the evidence. “This failure,” writes Donald Creighton, “of the policy of large-scale immigration knocked the bottom out of the whole British scheme for the anglicization of Quebec.” Professor Burt has set out and explained the second reason – far more profound – for the failure: the 60,000 Canadians formed an overwhelming majority of the population and they were the representatives of an ancient civilization. “One race has been merged in another only when the assimilated did not possess an old and fixed civilization or when they were a minority. Neither of these fundamental conditions existed in Canada.” In short, the policy of intolerance and anglicization promoted by London following the Conquest, set out in the Royal Proclamation of 1763 and whose implementation was attempted in the following years, was a miserable failure. This is a truth that cannot be hidden, even in some overly-quick summaries in which historical sense and a spirit of justice give way before the party line. Far from hiding this truth, Chester Martin proclaimed it when he wrote: “Successful as the Canadian solution of the problem of race may now seem to the South African or the Irishman, a closer view of its early history is less inspiring.” In fact, when compared to the Royal Proclamation of 1763, the Quebec Act of 1774 appears to be a giant about-face. London backpedalled, reversed its course, and called on its representatives in Canada to drop the hard line and apply common sense in its place, with the goal of reconciling a series of higher interests that at first appeared separate and divergent. In short, the Quebec Act marked a total break with the Royal Proclamation of 1763. Between them

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lies not only a gap, but a chasm. The Quebec Act is nothing less than an official repudiation of the Royal Proclamation. As expressed by Donald Creighton, “the Quebec Act was the statutory repudiation of the whole policy of the Proclamation of 1763 and the statutory recognition of the enduring vitality and distinctive personality of the colony of the St. Lawrence.” Chester Martin can only agree: “So complete a reversal of the policy …” There were several reasons for this repudiation, which deserve to be listed and examined separately. […] One year before his departure to England, in other words in 1769, Carleton received a report from the Board of Trade that proposed neither clemency nor generosity for the Canadians. Carleton reacted indignantly. “Against this project Carleton protested with all the vigor at his command.” The same author, McInnis, adds that around 1770, as Carleton was leaving Canada, the British government was moving towards a repudiation of the Proclamation of 1763. However, the battle was far from won. Victory was achieved only when Carleton was able to prove the validity of his approach using logic and to invoke, in support, the “approaching storm,” to use the vivid image provided by Bruce Hutchison. “Contingency”; “approaching storm”; these threatening terms appear in the preceding quotes, and the threats were real, as Carleton knew better than anyone else. He was realistic, but also a skilled imperialist, and was well aware of the true interests of the English empire and of a conquered, but lightly-bound, Canada. “Whatever his mistakes,” Professor Burt points out, “Carleton had the interests of the Empire and of Canada at heart.” Carl Wittke called Carleton an ardent “imperialist.” Murray had been obsessed with a recurring idea as early as 1759, and for Carleton, throughout his time in Canada and even while pleading his case in England from 1770 to 1774, it became a fixation: fear of the American colonies and of the growing storm that finally broke in 1775. In the life of a people, certain catastrophes become possible only because the supervising power has dropped its guard. However, blindness was not one of Carleton’s faults; he kept a watchful eye on the situation and was not taken in by appearances. Five months after landing at Quebec, in other words in February 1767, Carleton sensed the threat of an American invasion of Canada. Seven years before the passage of the Quebec Act, he was ready to

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move heaven and earth in order to neutralize the danger to England’s hegemony in North America. Was he in the grip of an obsession? Some of his enemies – and he had several – clearly suspected this and covertly spread the word. Chester Martin claims that “this theme is to be found again and again in Carleton’s correspondence” and admits that the fear of an American invasion had become a “fixed idea” for Carleton. A monomaniac perhaps, but also a prophet – Carleton was to be proved right by events. On February 15, 1767, Carleton wrote a letter to Gage that all alert historians have mentioned. The commander in chief of all the British forces in the Americas was worried about the turn of events in his immediate vicinity and in the surrounding areas, and asked Carleton for advice. The significance of this letter did not escape the attention of one specialist in Canadian constitutional history: “As early as 1767 he (Murray) had begun to relate Canada to the world and to see the strategical position which the province would hold should the southern colonists prove recalcitrant.” To ward off a possible invasion, Carleton recommended the building of a fort close to New York, the construction of a citadel at Quebec and the repair of the fortifications at Crown Point which would establish a link between the American and the Canadian cities. “A masterly conception” exclaims Professor Burt. Yes, without a doubt, this was a stroke of genius which, had it been implemented, would have prevented the advance of American troops along the Richelieu river in 1775. During the fall of the same year, more precisely on November 25, 1767, Carleton, aware as always of the grave danger, notified Shelburne that His Majesty’s new subjects (the British name for the Canadians) had 18,000 soldiers and officers ready to repel the invaders. A powerful force, added Carleton, that had fought successfully in campaigns prior to the Conquest “With as much valor, with more zeal and more military knowledge for America than the regular troops of France that were joined with them.” Victor Coffin adds his own comment: “Easily led, they were by no means timid or spiritless.” In short, in the event of an armed conflict between Canada and the colonies to the south, these 18,000 Canadian soldiers and officers would be a precious resource for the British. This is also the thesis put forward by William Knox, Undersecretary of State in the American Office, the quasi-official defender of the Quebec Act and author of two well-known brochures: Justice and

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Policy of the Quebec Act and Thoughts on the Late Act, published in London in 1774. According to Knox, the French Canadians, if they were given what they wanted as Roman Catholics, would constitute “a security against the insurgents of the parts of America; for in case of emergency, a force can easily be raised from thence.” Chester Martin, after emphasizing the words “a force … from thence,” surrenders to the evidence and writes, “It was one of the chief purposes of the Quebec Act to interpose the barriers of French feudalism in Quebec to the northern expansion of the old colonies.” Professor Lower, even more categorically, notes that, as early as 1767, “Carleton was already preparing for the American Revolution.” And Carl Wittke agrees: “It must not be forgotten that Carleton had for some years seen the American Revolution on the horizon.” And when revolution broke out, when the catastrophe “too shocking to think of,” as Carleton mentioned in his dispatch of November 25, 1767, occurred, what he had feared for many years came to pass. We can believe R. Coupland when he writes, “Carleton saw now what years ago he had foreseen – the old colonies in rebellion; ­Canada the strategic key to the now inevitable struggle; the fate of ­Canada, perhaps the fate of North America dependent on the attitude of the Canadians.” Carleton was not only a prophet in the days, weeks and months leading up to the American revolution, but “years ago,” eight years before the “catastrophe,” as proved by his letter to Gage dated February 15, 1767. This supports Professor Lower’s conclusion, “It was the shadow of the American Revolution that brought forth the Quebec Act.” A similar conclusion is drawn by Stanley B. Ryerson: “The key to the Quebec Act is to be found in the American Revolution.” In addition to the American threat, another danger, just as fearsome, must be noted: the possibility, even the probability, of France declaring war on England in order to support American independence and weaken and humiliate its constant rival, the proud, “perfidious Albion.” If this occurred, Canada would be the site of the decisive battle; Canada would be where the fate of the United States and the future of the British empire would be settled. In fact, a key letter from Carleton to Hillsborough dated November 20, 1768, in other words ten years before the passage of the Quebec Act, stated: “Should

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France begin a war in hopes the British colonies will push matters to extremities and she adopts the project of supporting them in their independence notions, Canada, probably, will then become the principal scene where the fate of America may be determined.” Professor Burt expresses the same idea in an ingenious comparison: Canada would be the Achilles’ heel of the empire. The United States, alone against England, could make life difficult for the Canadians – but with help from France, it could strike a decisive blow. Carleton, in his simple but always incisive way, set out the details of the problem in the same dispatch to Hillsborough dated November 20, 1768: “Canada in the hands of France would no longer present itself as an enemy to the British colonies, but as an ally, a friend, a protector of their independence. Your lordship must immediately perceive the many disadvantages Great Britain would labour under in a war of this nature.” This was self-evident: the Canadian “subjects,” if they became American “citizens,” would reverse their defeat on the Plains of Abraham and would enjoy the normal, natural relations with their former mother country, France, of which they had been deprived since the Conquest. This is because France was still, militarily speaking, a great nation. It had, according to Professor Burt, “more soldiers than Britain, a fleet that qualified her command of the sea.” In addition, no peace agreement between France and Great Britain – as sworn enemies – offered any guarantee of permanence. “In those days,” says Professor Burt, “France was the hereditary foe … For a century and a quarter, from the English Revolution to the battle of Waterloo, Britain and France were fighting off and on. Another war might break out at any time.” Another historian, Coupland, points out the precarious nature of the peace agreement signed by France and England in the treaty of 1763: “From the moment the Treaty of Paris was signed, the French Government, in close concert with Spain, had been busily engaged in striving to repair its weakened resources with the fixed purpose of renewing at its chosen time the old struggle with England and reversing, if it might be, the decision of the Seven Years’ War.” None of these fears were imaginary, and in the end events followed the path described by those who, on reasonable grounds, had made their fears known. France really did come to the assistance of the United States. In 1778, the American Congress approved a project to conquer Canada

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in the spring of the following year. American troops were expected to invade Canada along the border between Detroit and Montreal, while vessels carrying French troops would sail up the St. Lawrence to Quebec to capture the citadel. This is when Canadians heard the call of the blood, or in French “l’appel de la race.” People of French extraction in Canada had to make a dramatic choice: would they seize the opportunity to take revenge on their former English Canadian enemies? Professor Burt does a magnificent job describing the excitement and – understandably – the exaltation that seized Canadian hearts and minds during these crucial hours: Already the foundations of British rule in the North were shaken by the news that France had declared war on Britain. The tidings flew from village to village, awakening old memories and stirring new hopes in Canadian hearts. They leaped at the call of the blood. A few days after the congressional decision was reached, the French admiral in American waters, D’Estaing, published an address in which he appealed to them, saying: “Vous êtes nés français, vous n’avez pu cesser de l’être” (“You were born, and have never ceased to be, French”). Once again, in 1793, the call of the blood fell seductively upon Canadian ears. The French Revolution of 1792 had introduced the objective of making war on all kings – or at least all tyrants – including the King of Great Britain. France sent an ambassador, EdmondCharles [Genet], to the United States, with the mission of stirring up already troubled waters and encouraging the United States to declare war on England. A brochure entitled Des Français libres à leurs frères du Canada (“From the free French to their brothers in Canada”) offered Canadians the usual tantalizing images. “That lump of flour carries a suspicious look with it” was the reaction of a majority of Canadians, even though Governor Dorchester took fright and, in the spring of 1794, stationed 2,000 militiamen on the border. In December of the same year, the English navy captured Ira Allen on board a ship with a cargo of 20,000 rifles intended for the French Canadians, in the event that the inhabitants of New France in the Americas supported the French Revolution. Mason Wade has given full details of this incident.

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Throughout this troubled period, haunted by the idea that France could regain its power and hostility, the nervousness of the British authorities in both England and Canada reached a new peak, as revealed in certain incidents which, although insignificant in themselves, took on catastrophic proportions through the effect of fear. In the spring of 1772, Lord Hillsborough was in a state of extreme agitation. Why? He had received a copy of a letter sent by M. de Rouville to France’s ambassador in Madrid, revealing that a French officer who had just set sail from London for Canada was none other than the son of M. de Rouville himself. A mysterious coincidence! What lay behind it, what plot did the letter and trip conceal? A few weeks later, Cramahé also had reason to become alarmed. An old militia officer, named Dufy, a prosperous member of Montreal’s bourgeoisie, had received a long-awaited award – the Croix de Saint-Louis. However, he had to travel to France to receive his distinction. Cramahé became deeply suspicious and wondered whether the award was not part of a broader plan to draw a number of Canadians back to their old allegiance. Professor Burt has discussed both incidents. Haldimand, Carleton’s successor, was also obsessed with the idea that a victorious France could attract a large part of the Canadian population. Professor Coupland admits that there was a “drift” of Canadians to the French position. Haldimand had only one option. As Professor Coupland puts it, “There was indeed only on the thing Haldimand could do to stem the drift towards France – make the best of the Quebec Act, the sole fault in which, as he complained, was that unfortunately for the British Empire, it was enacted ten years too late.” The debate between historians has focused on one key question: did the American revolution, or a newly hostile France, most influence the passage of the Quebec Act? Professor Coupland takes the position that the greatest threat came from France: “The purpose of the Bill was to forestall the greater danger (a renewal of war with France): it was an additional but quite secondary advantage in its authors’ eyes that it carried with it an insurance policy, so to speak, against the lesser.” On the other hand, Professor Burt notes that Carleton’s letter to Gage on February 15, 1767, forms the basis for the main argument presented by the supporters of the opposite thesis: “This letter has

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been used as the foundation of a strongly supported theory … that the dominant idea of Carleton’s policy and therefore the main purpose of the Quebec Act was to forge in Canada a weapon which might be used to keep the old colonies in subjection.” As we have seen, this is the position defended by Chester Martin. Professor Burt, however, cannot ignore the fact that Carleton’s decisions and actions were also motivated by a fear of France. “Therefore,” he writes, “another theory has been cleverly advanced to prove that his controlling motive in driving toward the Quebec Act was to prevent the French character of the colony from drawing it back to France.” And he concludes, “One may venture the conclusion that neither theory suffices; there is too much to be said for both.” Bene! Recte! Optime! We must remember this timely conclusion by the author of the monumental work The Old Province of Quebec: neither thesis, in isolation, suffices to explain the passage of the Quebec Act. Together, though, they circumscribe the matter. However, other factors must be taken into consideration since they also influenced the passage of the Act. It does not seem unreasonable here to open a parenthesis concerning the comments made by Thomas Chapais on page 169 of Volume I of his Cours d’Histoire du Canada. Anyone who has patiently perused the letters, reports, briefs, and deliberations that led up to the Quebec Act will have ­difficulty continuing to believe – as I believed myself – that the principles and decisions incorporated into the Act were dictated to the British government solely by the imminence of the American Revolution. This is a way of addressing, obliquely, a question that should be faced head-on. It could even be seen as a way of avoiding the issue. Thomas Chapais ascribes a false argument to his opponents, and then immediately invalidates it – an exercise in futility. The imminence of the American Revolution, alone, did not lead to the passage of the Quebec Act: this much is obvious. We cannot disagree, and all serious historians today support this position. All admit – as we have seen – that France was also an element in the equation. This gives us, not one, but two factors. And, as we shall see, two other factors cannot be ignored.

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Too many historians have underestimated a third threat facing the British authorities in Canada, a threat they nevertheless glimpsed immediately after the Conquest. This was the threat from the Savages, and it reached a climax in 1763, the year of Pontiac’s Rebellion. Murray was so afraid of Canadian emigration that, even after being recalled to England, he continued to press the issue. Emigration had apparently become his main concern. Coupland notes this: “I glory, he wrote when he was back in England, in having been accused of warmth and firmness in protecting the king’s Canadian subjects … that brave, hardy people, whose emigration, if ever it shall happen, will be an irreparable loss to the Empire.” Arthur Dorland, in turn, as we have seen, did not ignore the ­possibility of Canadian emigration after the Conquest. In short, the American colonies to the south, France, the Savages and the possibility of Canadian emigration were all potential threats hanging over the English in Canada once the euphoria of the 1760 victory had subsided. The political outlook, so full of threats, would have suggested the need for pacification to even an inattentive observer. For Murray and Carleton, both endowed with superior intelligence and outstanding flair, it pointed to a policy of reconciliation with the Canadians. To argue otherwise would be to take Murray and Carleton for imbeciles, unable to see further than the tips of their noses. Some claim that this was a case of “muddling through” in typical English fashion. Even if this really is the principle governing English conduct, both of Canada’s two first British governors were brilliant exceptions to the rule. After this long analysis, we will offer a brief summary. It takes the form of a single sentence: utility – rather than generosity – led to the Quebec Act. The clear minds of Murray and Carleton – especially Carleton – identified a clear problem. We must pay homage to their intelligence and leadership, but we refuse to add to their record a badge of generosity or indulgence exercised solely for love of God and men. A number of Anglo-Canadian and American historians have previously reached the same conclusion. Their combined findings cannot be considered redundant, since this is question of capital importance in the history of Canada.

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One after the other they vie for position in variations on a theme that over time has become a little tired. Let us look at their conclusions. “The constantly increasing friction between the English m ­ othercountry and her thirteen colonies made it imperative to conciliate the French population.” (Wittke) “About half the regular troops in America were in Quebec and the western posts until 1770. If that garrison were to hold America against French attack, Indian war or colonial rebellion, it could not be used to put down a Canadian guerrilla. Justice to the Canadians had therefore a strategic purpose.” (Morton) “The keynote of Haldimand’s policy was to placate the Canadians. Like other Britishers who had governed before him, he saw this as the only way to hold the colony within the British fold.” (Burt) “In view primarily of a renewal of war with France, but secondly of just this emergency (a war with the old colonies), Carleton had worked unceasingly to make British policy in Canada so ­liberal and so candid that, when the crisis came, a grateful and contented people would rally whole-heartedly to defend a Government which had understood their wishes and freely granted them.” (Coupland) “Some of Carleton’s opponents maintained that his policy was wholly inspired by the idea of using French-Canada to overawe and if need be, to suppress the disaffected British colonies in the South. That this was one of his reasons for desiring to ­conciliate the French-Canadians is clear. It would occur to any ­soldier’s mind on the morrow of the Stamp Act troubles. It had occurred to Murray, who spoke of Quebec as a ‘guarantee for the good behaviour of its neighbouring colonies.’ But the first enemy to be feared was the French-Canadians’ mother country … to conciliate the ‘new subjects’ was obvious wisdom. Danger on the North American horizon merely made it more obvious.” (Coupland)

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“In the interests of the Empire and Canada, the Canadians were to be won.” (Burt) “In 1759 Murray had seen that Canada might be used to keep the old colonies in order and now that the stormwrack of the coming tempest was clearly apparent Carleton had the same vision.” (Burt) “It is not meant to deny that in the generally threatening conditions in America the firm attachment of the new subjects must have appeared to the home government as a very desirable thing; nor that the conviction of this desirability was probably a considerable factor in confirming the final conclusions as to their treatment.” (Coffin) “Their attitude (of the inhabitants) might ruin him (Murray) and his little army, and therefore they must be won over.” (Burt) “It was thus imperative to strengthen the defenses of Canada and to rally the loyalty of Canadians, and for the latter purpose it was absolutely essential to satisfy the French.” (McInnis) “The measure by which the official British policy for Quebec from 1763 to 1769 was formally reversed passed the British Parliament in an interval of political twilight fitfully illuminated by flashes of the coming storm.” (Martin) Murray and Carleton had foreseen events from afar – even events that took place, not just in the 18th century, but even in the 19th century. It would be easy to show that the Quebec Act kept Canada under the British Crown during a series of crises or difficulties: in 1775, during the American Revolution; in 1778, when France declared war on Great Britain and offered assistance to the United States; in 1793, when revolutionary France was at war with Great Britain; during the 1812 American War; in 1837 during the Patriot uprising; and even, according to Professor Coupland, in 1867, at the time of Confederation. Last, in the view of many specialists, the Quebec Act laid the foundations for the Empire and Commonwealth.

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Those who see only generosity, where self-interest was the primary factor, have fallen victim to a flight of oratory that is not supported by the facts. Their minds lean towards an imperious or tendentious crystallization; they select their facts, or comment on them in a prejudiced way. They have a cavalier view of reality. Murray and Carleton, as it happens, both had a lively intelligence and strong intuition. I even grant that they were courageous, and admit that they helped guide the empire along its fated path. As governors, I agree that they were able to earn the affection of the senior clergy and Canadian seigniors and, on several occasions, to save Canada from mortal peril. But I cannot believe that generosity was the sole, or even the principal, motive for their actions. “England’s difficulties are Ireland’s opportunities” is an axiom that was well known in Ireland, especially at the time of Daniel O’Connell. England’s difficulties, in the years following the Conquest, also served magnificently and inadvertently to further the interests of French Canada. It would be naïve to thank the British authorities, whether in London or Quebec, for the benefits dispensed, in fact, by an everwatchful Providence. Translated by Benjamin Waterhouse

Not e   1 Excerpt from Séraphin Marion, “L’Acte de Québec, concession ­magnanime ou intéressée ?,” Les Cahiers des Dix 28 (1963), 147–77.

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Canadian Historical Controversies Hilda Neatby 1

A M or e E f f e c t ua l P r ov i sion: The Quebec Act The Quebec Act, as the framers modestly claimed, was intended to make “a more effectual provision for the province of Quebec.” The statement is accurate enough, but it needs interpretation. The ­Quebec Act applied to two areas: the narrow parallelogram along the St ­Lawrence defined as the province of Quebec by the Proclamation of 1763, and the much larger area about the Great Lakes and beyond, claimed by France and yielded to Britain by the Treaty of Paris, but until now no part of the province of Quebec. The union of these areas in 1774 did two things. It introduced a new and controversial form of colonial government into the St Lawrence Valley and it laid down a new policy for the Ohio country, a subject of contention between Britain and the other American colonies for the past twenty years. These two things were done at a time when the taxation controversy with the American colonies was about to culminate in open rebellion. An act of such a kind, passed at such a time, and applying to such territory, could not be seen merely as the clearing away of unfinished business in the St Lawrence Valley. It was imperial legislation, dealing with a difficult imperial problem at a time of crisis in imperial relations. The act, moreover, was drafted in close consultation with Guy Carleton, in accordance with the plans formulated by him during his administration of Quebec – plans formulated quite frankly with a view to military action on the continent as well as to defence against a French invasion. Apart from all imperial implications, however, provision for more effectual government of Quebec was long overdue. As has been seen,

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the British government had practically agreed on an important revision and clarification of the law in 1766. The plan was not executed, and from this time there had been repeated postponements as it became clear that an act of Parliament would be needed. Meanwhile, from the early opinion in June 1765 that the penal laws of Britain against Roman Catholics were not applicable in the American colonies, the views of legal experts slowly accumulated. In 1769, as the reports of Carleton, Masères, and Hey were about to be brought home by Maurice Morgann, the Board of Trade, newly constituted under Hillsborough as Secretary of State for the American colonies, produced its own report on Quebec. Stimulated by renewed requests from merchants in London, Hillsborough and his board recommended an elected assembly so constituted as to be composed of a nearly equal number of seigneurs from country districts, presumed to be Roman Catholics, and merchants from the towns who would take the oath as Protestants. The law and the law courts were to be regulated according to the neglected plan of 1766. Detailed proposals were made for ecclesiastical arrangements, Protestant and Roman Catholic, and for raising a revenue. Hillsborough believed that this plan might be acted on during the winter of 1769–70. For this reason he declined to ask leave for Carleton to return to England in the fall of 1769 on the ground that he would be needed in Quebec to inaugurate the new constitution. Hillsborough had been too confident. His plan was set aside by his colleagues to wait for the arrival of Morgann early in 1770 with the Quebec reports. Later in that year Carleton reached London. Thereafter, while Cramahé in Quebec was repeatedly informed that the Quebec business was on the point of being settled, one year followed another and no action was taken. Not that ministers were exactly idle: they were adding to their collection of expert opinions the lengthy report of Wedderburn, the Solicitor General, Thurlow, the Attorney General, and Marriott, the Advocate General. By the end of 1773 His Majesty’s ministers had at their disposal reports from no less than seven law officers, to say nothing of the amateur efforts of Carleton and Maurice Morgann. And still they hesitated. It is possible to explain, if not to excuse, the fact that it took seven years to deal with a problem clearly stated in 1766. One reason was the weakness of the successive ministries until after 1770, when the advent of the North ministry gave a certain stability to administration. Once parliamentary legislation was determined on, however, any ministry would be reluctant to touch so contentious a matter as

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the government of Quebec. It would clearly be impolitic and unjust to satisfy all the wishes of the English mercantile minority, and yet, on the question of French laws and the Roman Catholic religion, popular prejudice would support the minority. Even apart from popular prejudice, the problem of devising a settlement for Quebec that would combine justice and some degree of satisfaction to new and old subjects without endangering the security of the state was indeed baffling. How could Roman Catholics be tolerated and conciliated and at the same time assimilated to Protestantism? What would be a good law for a former French community, cut off from France, united to England, a close neighbour of American colonies, and now infiltrated with Englishmen and Americans? This difficulty was exaggerated by the fact that the good lawyers who offered their expert opinions were, for the most part too good to give their unqualified approval either to the French system, which they did not know well enough, or to the English, which they knew too well. As for the constitution, an English colony without an assembly seemed unthinkable, an assembly including Roman Catholics unreliable, and an assembly excluding Roman Catholics unjustifiable. It is not surprising if ministers found it easier to ask for reports than to make any use of them. It is significant, however, that the lawyers’ reports, with many individual differences, show a general agreement on the plan favoured by Masères as the alternative to a code: a retention of English law as a basis with the Canadian law of land tenure, alienation, inheritance, and wills. For all this unanimity William Knox, the Under-Secretary for the Colonies, remarked “after all the pains that had been taken to procure the best and ablest advice the ministers were, in a great measure, left to their own judgement.” Nothing could have been more unjust than this suggestion that the government had been betrayed by its assistants. The differences between the reports were much less surprising than their substantial agreement on law, government, and religion. The ministers chose to walk by other lights, setting aside the reports, or rather, burying them. When the reports were asked for during the debate on the bill, the government refused to produce them, very naturally, for only Attorney General Thurlow’s report gave any support to government policy. The terms of the Quebec bill in its final form were based almost exclusively on the wishes of Canadians as interpreted by Guy Carleton. Evidence of what Canadians had really been wanting since

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the Conquest exists only in fragmentary form, but is sufficient to illustrate, after a fashion, Carleton’s oversimplification. It is clear that a critical moment in the formulation of opinion was Murray’s ordinance of September 1764, followed by the attack on it by the grand jury. Murray had evidently conveyed to Canadians much more clearly than the terms of his ordinance could, that the court of common pleas was to be a Canadian court, a refuge from the rigours of English Protestantism, English laws, and the English language. In practice, however, the English might use it, and the attack of the grand jury, or so the members stated later, was based on their alarm at the thought of a jury of Roman Catholics settling a case between Protestants; the converse, the settling of Roman Catholic cases by Protestants, would, they conceded, no doubt be equally disagreeable to Roman Catholics. However they might strive later to explain their presentments, or explain them away, in fact the English jurors had cited the English penal laws which would exclude Roman Catholics not only from acting as jurors or lawyers, but from the army and all learned professions. This action, and Murray’s public rebuke, encouraged the Canadians to make his ordinance and all that it implied a rallying point for the defence of their rights and privileges. Inevitably the Church had a special interest in defending the civil rights of Roman Catholics. Briand, at this time, was just leaving for England and other churchmen at Quebec apparently attempted to take the lead in something which, for want of a better word, must be called an incipient national movement. A document drawn up for the guidance of Canadian Catholics urged unity for common action. It attributed the attack of the grand jury to Canadian passivity, born of fear, and of the private resentments between members of different social ranks. A petition signed by nearly a hundred names, including those of the Grand Vicar, Perrault, the parish priest of Quebec, Récher, and Boiret, the superior of the Quebec seminary, asked particularly for the maintenance of the court of common pleas “where all cases between Frenchman and Frenchman could be decided,” and for the right to transact their own affairs in their own tongue and “to follow our customs, in so far as they are not opposed to the general well being of the colony, and to grant that a law may be published in our language.” […] The angry and even threatening tone of these last representations suggests that those who prepared them may have known that Murray

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was pressing for concessions to the Canadians on the ground that without them they would migrate, leaving the English with an empty and barren territory. It would not be surprising if Murray decided that it would be in the interests of Canadians generally to suppress the actual document, whatever use he may have made of the contents, in pleading their cause in London. The following year a much briefer and more moderate petition went to London from the seigneurs at Montreal alone, thanking the government for the concession of the bishop, and requesting the continuation of Murray as governor, asking civil equality for Roman Catholics and Protestants, and for “the suppression of the register, the expenses of which exhaust the colony without yielding the least advantage in return.” The seigneurs made no reference in this petition to Canadian law. Up to this time there had been no clear-cut request for the continuation of Canadian law in its entirety, probably because it was believed that such a request would give offence. The nearest approach to a demand for Canadian law was the resolution from the Montreal assembly asking for the preservation of laws and customs “de la manière la plus avantageuse.” This item did not find its way into the Quebec petition. From the return of Briand and the arrival of Carleton until the eve of the Quebec Act there are no more of these glimpses into the movements of the Canadian community. Briand, not a Canadian, would be less inclined than Perrault or Marchand to put himself at the head of a Canadian movement, even one which was related to the interests of the Church. Moreover, newly returned from London, and with full knowledge of the suspicions entertained there of “meddling priests,” he would have been horrified at the idea of the vicars general having enlisted the aid of the parish priests in arranging an assembly of Canadians for political purposes, no matter how useful these might seem to be to the Church. Even in 1773 when Montgolfier, distrusting the ability or the goodwill of Chartier de Lotbinière, who was going over to speak for the Canadians, suggested that he was prepared to use seminary funds to send over “Seigneur Panet” as a more suitable representative, Briand persuaded him to do nothing, but to depend on Carleton’s goodwill. As for Carleton, he disliked both assemblies and petitions. From 1767 he made himself the spokesman for the seigneurs as representing Canadians. During his regime in Canada there was silence until 1770, the year of his return to England, when, the English once more petitioning for an assembly, some sixty Canadians signed a

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petition to be presented by Carleton, asking for the first time without any ambiguity to be “restored to our customs and usages administered according to the forms with which we are familiar” and stating their reliance on Carleton, “this worthy representative of Your Majesty, who perfectly comprehends the condition of this colony and the customs of the people,” to support their petition. […] The triple Quebec question of the laws and the government, of religion, and of the revenue was ultimately settled by two parliamentary statutes. Revenue for provincial purposes was henceforth to be raised, according to Murray’s practice and Carleton’s advice, by a duty on imported rum and molasses. The duty was to be collected by no doubtful reference to French custom but under an imperial statute, the Quebec Revenue Act. The Quebec Act extended the boundaries of the province of Quebec, as defined by the Proclamation of 1763, to take in that area formerly claimed by the French, which included the Great Lakes, the area south to the confluence of the Ohio and Mississippi rivers, and north to the height of land which separated the lakes from Hudson Bay. New provisions were made for law and government and for religion in the whole of this region. The ministry had addressed itself seriously to Quebec’s problem in the late summer of 1773. The various drafts were produced and discussed during the winter, and the bill was passed through its various stages in Parliament in May and June of 1774. The wording of the preamble caused some slight embarrassment, the first draft saying bluntly that no one knew just what the law had been since 1764. Such frankness seemed superfluous. The final version opened with the extension of the boundary, on the ground that the Proclamation had left without civil government “a large extent of country within which were several colonies and settlements of the subjects of France who claimed to remain there under the faith of the treaty.” In their fury of indignation at the new boundary, the Atlantic colonies overlooked this perfectly accurate statement, and attacked the Quebec Act as one of the “intolerable Acts” of 1774. The extension of Quebec and of Quebec’s laws over the coveted Ohio country appeared to the land-seekers even more oppressive than the establishment of the reserve set up in 1763. It was easy to attribute sinister intentions to the British ministries. The suspicions of contemporaries are apparently borne out by a note from Dartmouth to Hillsborough, “nothing can more effectually tend to discourage

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[settlement] … which in the present state of the country it is impossible to prevent.” Dartmouth’s meaning is, however, quite clear. This clause of the Quebec Act would make it possible to carry out the policy of a western reserve envisaged by the Proclamation. Setting aside the question of sinister motives, there were plenty of arguments in favour of the enlarged boundary. In this respect the Quebec Act was not, indeed, an intolerable act but an inevitable one. Since 1763 the Canadians on the Illinois and at Detroit had had no effective law for the protection of their property, guaranteed by the Treaty of Paris. From time to time military governors had made ineffectual attempts to get them to move, which they had successfully resisted. As a result there had been sporadic efforts to devise some sort of civil government. Gage proposed a civil constitution for the Illinois but the people of Kaskaskia rejected it and presented themselves with a republican one. Detroit, also, was a chronic storm centre, constantly drawing up lengthy memorials to the government in London about the depredations of the commandants and others on habitant rights. More serious offences than these were committed at Detroit, including the very dangerous ones of attacking and murdering Indians. There was no system of justice there, or anywhere in the upper country, apart from the control of the military commanders. Yet, somehow or other, Detroit provided itself with a “judge,” one Philip Dejean. He performed judicial functions, and, presumably, charged fees, for he was neither commissioned nor salaried by the government. In 1772 Cramahé reported his useful activity in charging and sending down a man accused of murder; the man had been tried in Quebec and ultimately executed at Montreal. Dartmouth replied, in general approving the execution of murderers but, adding that Detroit was outside any civil jurisdiction, inquiring upon what authority Cramahé claimed jurisdiction there and “by whom the magistrates there are appointed.” Dartmouth might well have believed that, failing any other practicable plan, these scattered Canadian communities which were increasing in number and population must be united to their original centre. There were even more powerful economic reasons. Effectively, the fur trade of the area had fallen into the hands of the merchants, traders, and voyageurs of the St Lawrence, who alone were capable of meeting the rivalry of the French on the Mississippi. They had achieved astonishing success, establishing fleets on the lakes which gradually superseded the Ottawa as the route from the west, and

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drawing the furs from Louisiana as well as from the far west. It was clear that this rapidly expanding trade, involving complicated relations with the Indians and increasingly centred on the St Lawrence, must be brought under a central regulation. As the choice lay between Quebec and New York, it was inevitable that Quebec should be chosen. It is notable that Canadians and English alike in the fall of 1773 were petitioning for the province to be restored to its “ancient limits,” the one point on which they were in complete agreement. The most contentious and difficult clauses of the Quebec Act were the simple statement that “in all matters of controversy relative to property and civil rights resort shall be had to the laws of Canada as the rule for the decision of the same” and that “the criminal law of England … shall continue to be administered, and shall be observed as law in the province of Quebec.” Although this was roughly what Carleton had recommended in 1769 he had apparently changed his mind in accordance with the wishes of some of the seigneurs. The earliest draft on the laws revived the whole law of Canada as it had existed at the Conquest. As no statement was made about what law had existed since 1764, this threatened to confound the confusion already existing. Wedderburn, who was employed to prepare the drafts, persuaded Dartmouth and the cabinet to accept the advice of Chief Justice Hey, which was to ignore the past, accept “the laws and customs of Canada” for future civil suits, and continue English criminal law. Carleton consented to this, but his Canadian witness, the seigneur Chartier de Lotbinière, noted his very strong private reservations. He feared that Canadians might somehow be deprived of some part of their properties or privileges; he stated that the legislative power of the council should be so restricted as to make it impossible for Canadians to be deprived of the administration of justice according to their own custom which, he stated, had been one of the conditions of their capitulation and their later decision not to leave the province. He expressed a strong and reasonable preference for French criminal law without benefit of jury; by this law a man was not exposed to the whims of twelve ignorant men, but was tried by the ablest judges and condemned only on “proofs as clear as day.” Although he omitted to explain that the accused’s confession under torture might be needed to clinch the matter, Lotbinière’s reasoning was not necessarily invalid. Marriott, the Advocate General, preferred English procedure, but deplored the severity of the English punishments under a law “dipt in blood.” Both systems were badly in need of the reform which was to be effected a generation later.

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The objections of the Whig opposition in Parliament were very different from those of Lotbinière. The question of criminal law did not come up in the debates. Opposition speakers attacked specifically the elimination of habeas corpus and trial by jury in civil suits, but they were also unwilling to renounce English civil law, or to vote for Canadian law without knowing more of its nature. North insisted that the Canadian law merely furnished a “general basis” of laws “to be amended and altered as occasion shall arise.” Carleton, should he return to Quebec, would thus be cast in the role of mediator between Lord North’s “general basis,” which would be susceptible to amendment, and Lotbinière’s conviction that Canadian law must be rather more sacrosanct than Magna Carta. In spite of the last-minute petitions sent from Quebec by the English merchants, and of a further representation drawn up and presented on their behalf by Francis Masères in London, it was a foregone conclusion that the new constitution would not provide for an assembly. Apart from Hillsborough’s plan of 1769, which would have introduced distinctions between town and country members completely unrealistic in the melting pot of a society so very near the frontier, no plan had been suggested except for an exclusively Protestant body. Even the unreformed House of Commons would not consider such a travesty of representative government. On the other hand, not the most ardent advocate of representative institutions would have suggested that, fifteen years after the Conquest, when there was strong suspicion that France had not forgotten her old colony, the assembly should be turned over to the Roman Catholic majority. Yet the decision that “it is at present inexpedient to call an assembly” was not reached easily, so deep-seated was the sense that representative institutions were the birthright of all British subjects, and that to deny them was to support despotism. The evidence of a determination to cling to some vestige of parliamentary government is a clause which appeared in the first draft of the bill only, providing that copies of all the ordinances of the council and of the provincial accounts should be laid before both houses of Parliament as soon as possible after being received in England. Failing an assembly, the Act provided for a council of not more than twenty-three or less than seventeen members, to meet at any time on executive business and to pass ordinances with the consent of the governor during the first four months of every year. This arrangement made possible the return of ordinances to London by the first ships in the spring so that, if necessary, they could be disallowed

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before the next session. The council was not authorized to pass ordinances on religion, or to levy direct taxation. Ordinances imposing any punishment greater than a fine or three months imprisonment could not be enforced until approval had been signified from London. The English merchants, disappointed at the refusal of an assembly, were far from satisfied with the arrangements for the council. They asked that it should be larger, up to thirty-one members, and that the act provide for the due representation of all parts of the province. They also requested particularly that the power of suspension or removal of councillors be taken from the governor and reserved to the king by the terms of the Act. They would have been even more disturbed had they known that not only was the governor not deprived of the usual powers of suspension or removal, but that the rigid safeguards contained in the instructions issued to Murray and to Carleton under the Proclamation were to be entirely omitted from the instructions under the Quebec Act, leaving the governor with power to do again what, contrary to his instructions, he had already done in the dismissal of Irving and Mabane. The merchants had one more strong criticism to make of the council. They had argued that if Roman Catholics should not sit in an assembly, no more should they be members of the council. They wished, therefore, an exclusively Protestant council, or at least one including “only a few of the more moderate sort of Roman Catholics.” In the final draft of the bill, however, following the clauses granting freedom of worship, was included a special form of oath to be taken by Roman Catholics, making no reference to the doctrine of transubstantiation or to the royal supremacy over the Church, and referring to religion only in the repudiation of all “pardons and dispensations” which might offer a release from the obligations of the oath. The publication of this innocuous oath, seen in the context of the opinion of Yorke and de Grey of 1765 that penal laws did not apply in the colony, implied that any Roman Catholic would be eligible for a seat in council, or for other offices under the Crown. The m ­ erchants protested that, with no formal protection in the Act, they were liable to be placed under a council wholly composed of Roman Catholics. Their professed fears are generally dismissed today as either totally insincere or the product of selfish fanaticism. Whether or not they were fanatic, they were sincerely convinced that Roman Catholics

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were unreliable citizens, rendered incapable by their religion of offering full and single-minded loyalty to the state. The best twentieth-­century parallel is the conviction that a member of the communist party must be a bad citizen. The concession of complete civil equality to Roman Catholics in the Quebec Act is remarkable not for the opposition of their fellow-citizens, the Protestant merchants, but for the ready acceptance of the principle by the tolerant aristocrats of the British Parliament, to say nothing of the consent of the King. George III must somehow have convinced himself that his coronation oath did not include Quebec. The clauses on religion in the Quebec Act had been the subject of much thought. Originally it seems to have been taken for granted that a separate statute would be required. Perhaps because it entailed less publicity, the necessary clauses were included in the constitutional act and elaborated in the private instructions. Concern for the status of the Church had already caused an amendment in the legal clauses. The second draft of the bill gave Canadians “their property, laws, customs and usages.” It may have been Hey or Masères, drawing on local knowledge, who pointed out that this could revive a large body of ecclesiastical law. In order to avoid such a possibility the concession was limited to “property and civil rights.” “The free exercise of the religion of the Church of Rome, subject to the King’s supremacy” was conceded. It was natural for the ministry in an age when a voluntary church was almost a contradiction in terms to believe that freedom of worship must include for the clergy “their right to a decent and moderate maintenance under the sanction of a British act of parliament.” Therefore, tithes from Roman Catholics to their own clergy were enforceable by law, without prejudice to the king’s right to levy them on Protestants for a Protestant clergy. This provision for Protestant tithes earned the warm approval of Edmund Burke, who stated his willingness to endow Roman Catholicism but not to reward atheism. So much for the Quebec Act. It has often been said that those who criticize it as a reactionary measure, a repudiation of the pledges made to English merchants in 1763, ignore the accompanying private instructions in the light of which alone it can fairly be judged. The instructions on the civil law were indeed of the first importance. They would have gratified the merchants as much as they would have offended Chartier de Lotbinière. Carleton was required to ­consider, with the legislative council, the wisdom of introducing by

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ordinance, entirely or in part, English law “in all cases of personal actions grounded on debts, promises, contracts and agreements, whether of a mercantile or other nature; and also of wrongs proper to be compensated in damages.” He was also practically ordered to see to it that the common-law right of habeas corpus was introduced by ordinance. Had these instructions been followed the legal arrangements would have been approximately the same as those recommended by Masères in one of the four possible plans contained in his report of 1769. There would have been some delay, and, no doubt, a good deal of contention and confusion for a time, but given competent legal officials, any real mercantile grievances over the laws could soon have been removed and the English in Quebec would have suffered no more injury than the slight one which English pride must suffer in living under French law. Moreover, as North had said in debate, there was nothing to prevent the legislative council from proposing changes in any parts of the civil law. On the basis of these instructions modern historians have been inclined to praise the Quebec Act as a very liberal measure, a reasonable compromise, generous to the majority of conquered Canadians and fair to the small minority of immigrant English. Unfortunately, those who call the Act “liberal,” in the sense of classic nineteenth-century liberalism, do not read, or at least do not mark the instructions on religious matters which profoundly modify the apparently generous provisions of the Act. If these instructions had been followed to the letter, the bishop would have been prohibited and prevented from corresponding with any official at Rome; he could have exercised no authority in the church except what was “indispensably necessary” to the free exercise of religion (presumably ordination, confirmation, and, possibly, necessary marriage dispensations); and he could do none even of these things without a special licence from the governor. Only Canadians would have been appointed to parishes, and all appointments would have been made by the governor. Any priest who wished would have been free to marry. The seminaries would have been allowed to retain their property and to admit new members, but the governor or his representative would have been their “visitor,” with power to make regulations for them with the advice and consent of the council. The Jesuits would have been immediately dissolved, their members pensioned,

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and their missionaries withdrawn from the Indians and replaced by Protestant missionaries as soon as this could be done with safety. The Récollets would have been forbidden to recruit; the women’s orders might, for the time, have been allowed to go on as before. The Protestant religion would have been protected, encouraged, and endowed under the special authority of the Bishop of London who, with the governor, was to exercise all ecclesiastical authority in the province. In short, it was clearly the hope and intention of government that under a system of rigid state control, but without harsh persecution, the Roman Catholic Church in Quebec would gradually wither away. If, then, the Act is to be taken with all its accompanying instructions, it cannot possibly be called “liberal” from any modern viewpoint. If the instructions are forgotten and the Act stands alone, it is a charter for French Canadians, no doubt, but it ignores the reasonable requests of English merchants, to say nothing of past promises, and is, indeed, a strange piece of legislation for a victorious commercial empire. If the instructions are emphasized, then the concessions to Canadians become a simple protection to property and custom, and in no sense a recognition of community or “nation,” since the instructions contemplated the undermining of the one remaining institution which elicited genuine loyalty from all Canadians. In short, if the Act and all the instructions are read together and thought of as equally expressing the policy of the ministry, that policy can be seen only as one of gentle but steady and determined anglicization. The recognition of “the liberty of non-English people to be themselves” as an imperial principle was discovered by historians in the Quebec Act after this principle had necessarily been developed by Britain in relation to the other and truly alien peoples which were to become part of the empire during the next century. If this principle is in the Quebec Act, it got in without the knowledge of the men who framed it. It was, however, the Act that was binding and not the instructions. It would be unrealistic not to recognize that the responsible ministers knew that their essential policy must be expressed in the Act, and that instructions were secondary. By 1774 it is clear that the government, having procrastinated too long, was dominated by one idea. In view of the crisis in America some definite settlement must be made immediately for Quebec and for the upper country. That

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being so, it was desirable that the plan be simple and clear cut. It was also important that it be agreeable to Carleton, who was trusted to produce in Quebec the desirable results that he had promised. Carleton, it seems certain, intended from the beginning to ignore what he did not approve. Briand, really alarmed not only by the reference in the Act to the royal supremacy but also by what he knew or suspected of the instructions, was reassured by Carleton both by letter and personally after the Governor arrived in Quebec. Briand was given to understand that the king wished his subjects to have the full and complete enjoyment of their religion. Carleton had indeed already given the ministers notice of his attitude to the instructions on religion. A memorandum in the Dartmouth papers runs as follows: General Carleton wishes that on the head of ecclesiastical arrangements, he may be left as much to himself as possible – he has no objection to having every idea and proposition of government in regard thereto suggested in his instructions; but he disapproves the suppression of any religious communities except the Jesuits, and begs he may be left at liberty to use his own discretion in this very delicate business. [Italics are the author’s.] The deferential conclusion does not conceal the unconscious arrogance of this communication. To Carleton, instructions were not much more than suggestions. In view of his past record it can hardly be supposed that the ministry which sent him to Canada to inaugurate the new constitution considered its own instructions as a primary part of its policy. It is, therefore, difficult to praise the Quebec Act without reservation either as a solution to the current problem or as an instinctive act of statesmanship anticipating the nationalist feelings of the modern world. It seems clear that a less complete revival of Canadian law would have been satisfactory to the great majority of the Canadians, and would have met the reasonable wishes of the merchants. It might not have satisfied the seigneurs, but they were a minority even smaller than the merchants, and apparently even less popular with other Canadians. The special regard for their wishes was dictated by a political purpose which failed. From the viewpoint of political expediency it is probable that more could have been gained by conciliating the American waverers among the merchants. Certainly the

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exasperation of the merchants did nothing to improve relations between English and French in Canada. The Quebec Act has been tormented into a pattern of nationalist motives and implications alien to the time and to the men who framed it. In 1774 recognition of Canadian nationalism would not have been good, and a plan of humane anglicization was not bad. Nationalism was not yet a moral issue. The real moral issues were respected. All speakers in the House of Commons on both sides showed a concern for human rights, placing them, ostensibly at least, above any special interest. The reports of the law officers, without exception, were rational and humane, remarkably free from national prejudice. There was a concern to stress the limitations on the rights of the conqueror. “Can … the conqueror impose such laws as he pleases?” asked Wedderburn. “This proposition has been maintained by some lawyers who have not distinguished between force and right.” Nor was it forgotten that Canadians were persons: “I am free to say.” Said Charles James Fox, who opposed the bill; “that the Canadians are my first object; and I maintain that their happiness and their liberties are the proper objects, and ought to be the leading principle of this bill.” Undoubtedly the British wished first to conciliate and then to anglicize Canadians, and both for their own convenience. But in none of the correspondence or reports on the Quebec question is there any sign that they failed to accept these moral principles as fundamental.

Not e   1 Excerpt from Hilda Neatby, Quebec, the Revolutionary Age, 1760–1791 (Toronto: McClelland & Stewart, 1966), 125–41.

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The French Canadians, 1760–1791 Mason Wade 1

Chap te r I I . T h e L e g acy o f Conques t (1760–91) When the French Canadian says “Je me souviens” he not only remembers the days of New France but also the fact that he belongs to a conquered people. This fact is deeply embedded in his consciousness, although he may protest that New France was not conquered by the English but rather abandoned by the French; and it is an important factor in his psychological makeup and in that of the English Canadian. From it stem the persecution and inferiority ­complexes which underlie much French-Canadian thinking. These attitudes are mirrored in the work of certain French-Canadian historians, who paint the early days of British rule in dark colors contrasting sharply with their brightly tinted pictures of New France. It is still possible today to start bitter controversy in Quebec by pointing out that the first British rulers of Canada did not try to crush the French Canadians under the yoke of military government, but on the contrary actually befriended them against the pretensions of the swarm of campfollowers and commercial adventurers who descended upon the newly conquered land like a cloud of locusts. Such, however, is the picture which emerges from sober study of the contemporary documents. In this age of ruthless oppression of conquered peoples the peaceful transition of Quebec from French to British rule is remarkable and noteworthy. The English conquest might well have meant the end of French Canada as a cultural unit in North America, and of the French Canadians as an ethnic group; instead the survival of both was assured by legislation adopted a decade after the peace treaty had been signed. The French

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Canadians benefited by the confusion of British politics from 1760 to 1774, when colonial affairs were almost completely neglected in George III’s bitter struggle with the Whig majority. But their survival was not dependent, however, upon either British magnanimity or the force of circumstances; for French Canada possessed an indomitable will to live, witnessed in the first decade after the conquest by the attainment of the highest birthrate ever recorded for any white people. The whole history of Quebec since 1760 reveals how completely the French Canadians concentrated their resources and devoted them to the struggle for survival. This effort still continues, long after survival has been assured. […] The imminence of the American Revolution precipitated the Quebec Act, but it did not cause it, as the Americans immediately assumed when they learned that Labrador and the Ohio-Mississippi hinterland were restored to Quebec, thus hemming in the expanding population on the seaboard; that the French Canadians were granted the whole of their ancient civil law, almost to the exclusion of the English common law; and that the Catholic Church was virtually established in Quebec, while representative government was denied. All these measures in favor of their ancient enemies seemed to be as great blows to the economic, political, and religious liberties of the American colonists as the four penal laws directed against them, the ”intolerable acts” which were jammed through parliament along with the Quebec Act. Great Britain strengthened her hold upon the portion of North America which was to remain British by allowing it to remain French and Catholic; but it revived the old sectional rivalry of the American Hundred Years’ War. It was not wholly a coincidence that American unrest broke out into open rebellion at Lexington and Concord a few days before the Quebec Act came into effect on May 1, 1775. Since the Quebec Act is virtually the Magna Carta of the French Canadians, its provisions must be examined in some detail. Its reestablishment in large measure of the ancient boundaries of New France restored the health of the northern economy, and once more made the St. Lawrence system a powerful rival of the HudsonMohawk route. The New York and Albany traders were indignant at the prospect of being excluded from the Niagara and Detroit trade, which they had shared with Montreal under the Proclamation of 1763; while the colony on the St. Lawrence, which had always felt

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the pull of the West, was once more given scope for expansion in that direction. As an aftermath of the Revolution, which delayed the immediate application of the Quebec Act, much of that westward expansion was English rather than French, however, for the majority of the American Tories or Loyalists who fled to Canada eventually settled not in present-day Quebec, but in the wilderness to the west which became Ontario. Much more important at the moment to the French Canadians was the fact that the Act revoked the whole tenative system of civil, judicial, and ecclesiastical government which had been based upon the Proclamation of 1763, and which had aimed at the assimilation of the French Canadians into an English colony governed under English laws in an English spirit. Catholicism was no longer merely tolerated out of expediency; Catholics were assured the free exercise of their religion, which was no longer to be an obstacle to preferment to any office or position, since a new form of oath was provided which did not offend Catholic principles. The Catholic clergy were assured their rights and accustomed dues from Catholics, while the tithes of non-Catholics were to be applied to the support of a Protestant clergy. All future disputes as to property and civil rights were to be determined according to the “Laws and Customs of Canada” the old French civil law, although the Crown retained the right to grant lands in free and common soccage rather than in fief, and wills might be made according to English law if so desired. On the other hand, the criminal law of England was to be retained as a whole, to the exclusion of the French criminal law. Since it was “at present inexpedient to call an Assembly” the power to legislate for the peace, welfare, and good government of the province was confided to a Council of not less than seventeen or more than twentythree appointed members, acting with the consent of the governor. The Council was granted no power to tax except for public roads and buildings. Its ordinances were to be submitted to the Crown for approval or disallowance within six months, while no religious regulation at all and no punishment greater than fines or short imprisonment might be ordained without royal assent. A separate bill, the Quebec Revenue Act, established a schedule of duties and license fees which were to be applied to the support of the civil government and of the administration of justice. The victory of the new subjects over the old was almost complete. The French Canadians, who outnumbered the English-speaking people in the colony by thirty to one, were granted their faith, laws,

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and customs, with the exception of the old criminal law. As a matter of fact, the original draft of the Quebec Act had provided for the revival of the French criminal law, except in cases of treason and other capital offenses. This provision had been supported by Masères, Carleton, the seigneurs, and Thurlow; but Chief Justice Hey and Wedderburn had strongly attacked it, and their opinion had prevailed. Of the four cherished essentials of French-Canadian survival, only the question of language was left unsettled. It really had not yet arisen, save in the courts, for before the Quebec Act, as after it, “all proclamations were published in both French and English, and ordinances were passed in the same manner.” Since French was the only language understood by all the members of the new Council, debate was now carried on in French, although the minutes were kept in English. This fact, plus the increased power of the Council, added the last straw to the grievances of the merchants, who found themselves deprived of such traditional English rights as the habeas corpus, trial by jury, English mercantile law, and representative government. […] 3 Although the Quebec Act was wholly satisfactory to neither French nor English in Canada, it did much to ensure that one portion of North America should remain British, while it contributed largely to the loss of the rest. For it was a red rag to the American colonial bull, already goaded into exasperation by the repressive trade ordinances. In an “Address to the People of Great Britain” on October 21, 1774, the first Congress of the American colonies protested violently against this “worst of laws,” which established a “religion that has deluged our island in blood, and dispersed impiety, bigotry, persecution, murder, and rebellion throughout every part of the world.” The old antic “popish” frenzy the spirit that had lent to the French and Indian Wars the air of crusades, though they were really wars of trade and empire was roused once more in America. Desperate men are seldom oppressed by a need for consistency, however, and five days later the same Congress adopted an “Address to the Inhabitants of the Province of Quebec,” which sought to convince the French Canadians that their true interest lay in uniting with the American colonies in the struggle for liberty, representative government, and freedom from economic persecution. In this remarkable document, which attempted to split the French-Canadian masses from the elite

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benefited by the Quebec Act, the following words were put into the mouth of the “immortal Montesquieu,” whose ideas played a great part in the whole appeal : Seize the opportunity presented to you by Providence itself. You have been conquered into liberty, if you act as you ought. This work is not of man. You are a small people compared to those who with open arms invite you into fellowship. A moment’s reflection should convince you which will be most for your interest and happiness, to have all the rest of North America your unalterable friends, or your inveterate enemies. The injuries of Boston have roused and associated every colony, from Nova Scotia to Georgia. Your province is the only link that is wanting to complete the bright strong chain of union. Nature has joined your country to theirs. Do you join your political interests. For their own sakes they will never desert or betray you. Be assured that the happiness of a people inevitably depends on their ­liberty, and their spirit to assert it. And lest the difference of religion should prejudice the French Canadians against the Americans – though “the transcendent nature of freedom elevates those, who unite in the cause, above all such lowminded infirmities” – the example of the Swiss confederacy, a peaceful union of Catholic and Protestant states which together defied tyranny, was carefully cited. […] In July 1789 the younger Pitt’s cousin Grenville succeeded Sydney in the Colonial Office, and by the end of August he had drafted the basis of the Constitutional Act of 1791. He postulated an assembly on the grounds that the colony must stand on its own financial feet in the future, and that taxation without representation would lead Canada into the American Union. A single legislature was impossible for geographical and ethnic reasons; therefore an English province in the West must be cut out of the present province, “rather than these two bodies of People should be blended together in the first formation of the new Constitution, and before sufficient time has been allowed for the removal of ancient prejudices, by the habit of obedience, to the same Government, and by the sense of a common interest.” The legislative council was to be separated from the executive council, and to have the status of the House of Lords in the English system, with members holding their seats for life or during good

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behavior, and rewarded with baronetcies or some other mark of honor. The governor was to have both civil and military executive power and the right to dispose of the Crown lands. Grenville was inclined to believe that Canada would ultimately separate from the Empire, whatever constitution was given it; but he felt that the bestowal of a British constitution, in which the monarchic, aristocratic, and democratic principles were properly balanced, would delay that separation. In any case, a British constitution could no longer be denied to a large body of British subjects living in close proximity to the lost American colonies and at a great distance from England, while revolution was breaking out in France. The force of the geographical argument was evidenced by the fact that delays of navigation kept Grenville’s proposal of 1789 from traveling out to Canada for comment and returning to London in time to be considered during the session of 1790. Dorchester’s and Smith’s contributions to the original draft were negligible, for Grenville acted on his own ideas, which were also those of the younger Pitt. The final bill, which was passed on June 10, 1791, was little affected by its passage through parliament, and the debate upon it was chiefly notable for the irrelevant clash of Burke and Fox on the French Revolution. The Constitutional Act of 1791 did not repeal the Quebec Act, but only that portion of it which dealt with the form of government. The position of the Church and the status of the laws were left untouched. The actual division of the Province of Quebec into Upper and Lower Canada was embodied in a later order-in-council rather than in the Act itself, because Britain still held the Western posts ceded to the Americans in 1783. The project of a united British North America was abandoned, as Chief Justice Smith noted with sorrow: “I miss in it, however, the expected Establishment, to put what remains to Great Britain of Her Ancient Dominions in North America, under one general direction, for the united interest and safety of every Branch of the Empire.” To his Tory satisfaction, however, Canada was not “abandoned to Democracy” like the old colonies. The Act really satisfied no single group in Canada except the Loyalists of Upper Canada, who were delivered from an uneasy dependence upon Quebec, their ancient enemy. The FrenchCanadian masses were indifferent to the change, as were the clergy. The seigneurs found their position threatened by the prospect of a democratically elected assembly and of the granting of the Crown lands in freehold tenure. The merchants were the unhappiest of all:  the combination of the division of the province and of the

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institution of representative government perpetuated their minority status under French-Canadian control. The long-sought English commercial laws were not to be theirs, unless the French Canadians decided to adopt them. Pitt, in his reply to Fox’s objection to the division of the province on an ethnic basis, made the government’s hopes on this score clear: As the honorable gentleman has said, it would be extremely desireable that the inhabitants of Canada were united and universally led to prefer English laws and the English constitution. The division of the province is probably the best means to obtain that object. The French subjects will thus become convinced that the British government has no intention of imposing English laws upon them. Then they will consider with a freer spirit the operation and the effects of these laws, comparing them with the operation and effects of theirs. Thus, with time, they will perhaps adopt ours by conviction. That will happen more probably than if the government suddenly undertook to submit all the inhabitants of Canada to the constitution and laws of this country. It will be experience which will teach them that English laws are the best. But it must be admitted that they ought to be ­governed to their satisfaction. Macaulay mourned that Pitt had not died in 1792, when his name would have identified with these ideas of peace, freedom, philanthropy, temperate reform, and mild and constitutional government the ideas of what a later historian has called the Second British Empire. It is to the younger Pitt and to his cousin William Grenville that the French Canadians owe the forms of British self-government, which were so unfamiliar to them in 1791 that the grant was not appreciated, but which were shortly put to such good use that FrenchCanadian survival was assured for all time. A half century of constitutional conflict lay ahead, but thanks to London the French Canadians were armed to meet it.

Cha p t e r I I I . T h e S t r u ggle for S urvival ( 1 7 9 1 – 1 8 34) The era of representative government in Canada opened under happy circumstances which contrast sharply with the gloomy picture of the period painted by some French-Canadian historians, who see

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“secret thoughts” and “unjust motives” behind Grenville’s plan for Canada and consider it only a “caricature of British parliamentary government.” These writers fail to recognize the shattering effect of the outbreak of the Terror upon British official opinion, which had previously been somewhat sympathetic to the ideals of 1789, or at least had been confident that a revolutionary France was no longer to be feared. The tolerant attitude earlier shown to the French Canadians was replaced after 1793 by a fear of everything French, whether Continental or Canadian. As Britain struggled for its life against revolutionary, republican, and imperial France for the next twenty years, an ethnic tension hitherto unknown in Canada was ­created, which left its mark on the French- Canadian mind. The fault lay largely with those Loyalists who had been rewarded for their losses in the United States by offices in Canada. Their fear of everything French, based upon their traditional hatred of French “papists” and their bitter suspicion of French intrigues among the American republicans who had stripped them of their old homes and possessions, became almost hysterical. They furthered their new careers and feathered their nests by seeing “French emissaries” everywhere, and finding “French conspiracies” in the French Canadians’ efforts to practice the self-government which Pitt and Grenville had granted. They were badly scared men, who had lived through one revolution in America and dreaded another in Canada as the old eighteenth-century order crumbled. Their nervousness led them to confuse a growing French-Canadian nationalism and North American republicanism with a loyalty to France which had died with the Terror. Like other revolutionary victims, their reaction was so violent as to further in the long run the very revolution they feared. Their efforts to deprive the French Canadians of the selfgovernment embodied in the constitution of 1791 helped to bring on the Rebellions of 1837–38, for the “unquestioned Democratik Enthusiasm” which they noted with alarm in the 1790s was not to be repressed. But when the new constitution took effect on December 28, 1791, its advent was celebrated by public dinners in both the upper and lower towns of Quebec, where French and English alike sat down to feast and rose to drink such toasts as: The French Revolution and true liberty throughout the universe; the abolition of the feudal system; may the distinction between old and new subjects be buried in forgetfulness, and

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may the title of Canadian subjects survive forever; may liberty extend to Hudson Bay; and may the event of the day be a mortal blow to the prejudices which are contrary to civil and religious liberty and to commerce. Representatives of the gathering in the lower town carried a letter to that in the upper town, proposing the toast: “The Constitution, and may the unanimity among all classes of citizens cause all distinctions and prejudices to disappear, make the country flourish, and render it always happy.” This sentiment was drunk simultaneously at both gatherings amid general applause, and that night the capital was illuminated in honor of the new constitution. A Constitutional Club was formed by the 160 men who had dined together on this occasion, which was “enlivened by the Prince’s band of music” while a Club de Patriotes at Montreal avidly discussed and cheered the news from France at this period. The Prince in question was Edward, the soldier Duke of Kent and father of Queen Victoria, who was stationed with his regiment at Quebec from August 1791 to January 1794, fostered good feeling by his social talents, and made many friends among the French Canadians. 1 The differences between French and English Canadians were not to subside, however, with the coming of representative government, but rather to increase. At the very outset the new subjects were offended by the division of the province into twenty-one counties, most of which were given incongruously English names. Then there were disorders involving ethnic differences at the elections held in June 1792. The new assembly, whose members included seigneurs lawyers, notaries, merchants, and habitants, numbered sixteen English-speaking members out of a total of fifty, though the English population numbered only some 10,000 out of a total of 156,000. The French Canadians were in a distinct minority in the non-elective branches of the government: in the legislative council they had seven out of sixteen members, and in the executive council four out of nine. At the first meeting of the new legislature the two ethnic groups came into conflict over the election of the speaker of the assembly: Jean-Antoine Panet was nominated by the French members, while

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a choice among William Grant, James McGill, and Jacob Jordan was proposed by the English. A warm debate over the bilingual qualifications of the rival candidates sprang up, which was marked by the startling declaration of Pierre-Louis Panet, a cousin of the French nominee: It is absolutely necessary for the Canadians to adopt the English language in time, for this is the sole means to banish the antipathy and the suspicion which the diversity of language will maintain between two peoples united by circumstances and forced to live together. But while awaiting this happy revolution, I believe that it is only decent that the speaker whom we choose should be able to express himself in the English language when he addresses the representative of our sovereign. The notary Joseph Papineau made an eloquent rejoinder to the speeches of English members supporting this view, and when the vote was taken, Jean-Antoine Panet was elected speaker, despite the fact that his cousin Pierre-Louis Panet and the French-born François Dambourgès had joined the English-speaking bloc in opposing him. This early conflict between French and English members was but a forewarning of a clash that soon followed over the question of which should be the official language of the legislature. Up to this date French had enjoyed no legal status, although it was commonly used for most of the colony’s business, both public and private. Its dominance is indicated by the fact that all the English candidates for the speakership were bilingual, while Panet’s qualifications in this respect were by his own admission imperfect. To the committee on rules, composed of four members of each group, Pierre-Amable de Bonne proposed that the journals of the assembly should be kept in both languages. John Richardson, the leader of the Montreal merchants, promptly offered an amendment that the English version be considered the legal text. A notable three-day debate followed, with Richardson, Pierre Panet, Grant, McGill, Lee, and Young opposed to de Bonne, Papineau, Bédard, de Lotbinière, Taschereau, and Rocheblave. The most notable speech was made by Chartier de Lotbinière, who had upheld the rights of the French language before the British parliament when the Quebec Act was under consideration. His desire was not to exclude English, but simply to provide that both

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languages should enjoy the same status. He pointed out that the Quebec Act insured to the French Canadians their religion, their laws, and their rights as citizens. To him it was clear that the division of the province into Upper and Lower Canada had been made “in order that the French Canadians should have the right to make their laws in their language, according to their usages, their notions, and the present situation of their country.” He declared that the French Canadians were loyal to the king, and that they were English at heart before they could speak a word of that tongue. Referring to France, then torn by the Revolution, he concluded: “It is not by uniformity of language that nations are made more faithful or more united.” And Pierre Bédard, who soon became a parliamentary leader and was later to found the first French-Canadian newspaper, observed: “If the conquered should speak the language of the conqueror, why don’t the English still speak Norman? Is it not ridiculous to wish to make language the test of a people’s loyalty?” Richardson’s amendment was defeated by 26–13, with only Pierre Panet and Dambourgès crossing the ethnic line; a revised version was likewise defeated by 27–9, with two English members, Grant and McNider, voting with the French majority. The measure finally adopted by the assembly provided that all bills should be put into both languages by the clerk before being read, while members retained the right to bring in bills in their own language. It also ordained that the English text should be considered legal in the case of bills touching on the criminal law, which was of English origin, and the French text legal in the case of bills bearing upon the civil law, which was of French origin. Thus the two languages were put upon a basis of equality, and both were given an official character, though English remained the language of the law at the insistence of London. Bilingualism was recognized in fact in 1792, if it was not to attain full legal status until 1867. Thus representative government was used at the outset by the French Canadians to secure the last of the conditions of their national survival: official sanction of their language. Their religion, laws, and customs had already been secured by acts of the British parliament. The English party soon became discontented with the assembly for which they had so long striven. Richardson, the leader of the opposition, confided his gloom about the new form of government to Alexander Ellice, the London partner of his great Montreal trading firm, in a letter of February 16, 1793:

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Unhappily the Session commenced with a determined spirit of Party amongst the French members, for they had a private meeting, at which it was decided that an Englishman should on no account be elected speaker. We wished to conciliate and be moderate, and that the choice should fall on whoever might be best qualified to fill the Chair, from ability, habits of public business, and knowledge in both languages, without distinction of Country. For this purpose three, Grant, McGill and Jordan, were proposed, of which they might select one, the most consonant to the general wish, but all was to no purpose, right or wrong, a Canadian must be the man, no matter how ill qualified; and the election fell on a Mr. Panet, a Quebec lawyer, whose ideas and talents were never calculated for anything beyond the quibble routine and formality of a Court of Common Pleas, such as this Country has ­hitherto experienced. […] This letter reveals the outlook of one of the ablest British merchants in the colony, who resented French party spirit while he blandly assumed that only a member of his own group was qualified for the post of speaker; viewed his French colleagues with suspicion, and resented the dominance of the majority over the minority, although this was a basic principle of the British form of government which the merchants had so long desired. To be sure, Lieutenant-Governor Sir Alured Clarke, who represented the Crown in Dorchester’s absence, also noted at the outset of the session a “jealous spirit” and “some animosity” which he blamed chiefly on the fear of the French Canadians that the English intended to control the assembly and to use it to change their ancient laws and customs. But by the end of the session he was pleased to find that distinctions of origin had disappeared almost entirely, and that all the members sat down together for a final dinner marked by “the greatest harmony and the best mutual dispositions.” […] 4 Craig’s “Reign of Terror” as French-Canadian historians call it, has tended to obscure the very important economic developments of

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the epoch, which underlaid the constitutional conflict between the Château Clique and the representatives of the people. The surrender to the United States in 1796 of most of the western trading posts marked the beginning of the decline of the Montreal fur trade; and the cannier merchants had already begun to turn their attention to new fields. The fur trade had been based upon a nomadic civilization, and was the enemy of colonization; the new economy was agricultural and based upon land ownership. Soon after the Loyalists settled along the Upper St. Lawrence, the Montreal merchants began dealing in wheat and flour from that region, as well as from the Richelieu Valley, and acting as middlemen for their Upper Canadian brethren in the London trade. They also took a hand in the growing commerce in American products, which were brought down the Richelieu from Lake Champlain and exported to England under colonial preference. The British fur traders, like their French predecessors, were finally conquered by the land, and acquired property in the neighbourhood of Montreal from the declining seigneurs. In many cases they established small industries on these seigneuries, flour and saw mills, potteries, and organized domestic industries, such as the production at L’Assomption of ceintures flechees or woven-worsted sashes for the North-West Company and later the Hudson’s Bay Company. After the Crown Lands Proclamation of 1792 the British merchants began to indulge in land speculation on a considerable scale. This land speculation centered in the vast empty expanses of the Eastern Townships, which first had been left unsettled as a barrier to American aggression, and then reserved by Haldimand for colonization by the French Canadians, whose difference in blood, language, and religion might be counted upon to act as a check to American expansion. But geography was not to be denied in this region, which is a natural extension of Vermont and New Hampshire; and immigrants from New England began to settle there, drawn by the richness of the land. At first this movement of squatters was frowned upon by the authorities; but when both French and English Canadians alike refused to take up land in the Townships, “the most unlimited encouragement” was given to Americans. The French were loath to leave their familiar world of the St. Lawrence for this remote region. […]

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When the new governor, Sir John Sherbrooke, arrived in July 1816 to take over from Drummond, he found a full-fledged political crisis raging. The placemen, cheered by Sewell’s victory and the recall of Prevost, had celebrated the chief justice’s return in triumph with a twenty-gun salute, an incident which had strengthened the popular party’s conviction that the government was its enemy. Sherbrooke, like Prevost, saw that continual dissolutions were no solution of the difficulty, and he was not inclined to follow the course suggested by Bathurst of governing without an assembly, although this was feasible, since the executive was not financially dependent upon that body. He reported to London that Sewell was anathema to all classes of the population and should have been induced to resign. But since the government had decided to reinstate him, a measure which would alienate popular support and prevent any harmonious development of the province, Sherbrooke proposed that the colony be given an agent at London to voice its grievances, and that Stuart be detached from the French party by the gift of office. As time went on Sherbrooke took other conciliatory measures which did much to reduce popular opposition to the executive: he named Bishop Plessis to the legislative council, and proposed that Louis-Joseph Papineau be added to the executive council. It was clear to him that “the great evil of this country and the one most fruitful of discussions has been the lack of confidence in the executive government, not so far as regards the character of the governor but rather as regards the council, which has come to be considered as his adviser, and whose actions are regarded with a jealous suspicion which tends to hamstring all acts of government.” Sherbrooke’s policy was to win the confidence of the French Canadians and to reconcile them to the government by giving them a share in its responsibilities. But neither Sherbrooke nor any governor until after 1840 was willing to let the prerogative of the Crown yield to the growing power of the assembly. Thus, when goodwill was lacking on the part of the governor and moderation on that of the assembly, the inevitable conflict of the two competing powers became acute. The Constitution of 1791 had established representative government with an irresponsible executive. It had left undefined the respective spheres of the British and provincial parliaments, thus providing two sources of friction between the Crown and the assembly. Then, as the Crown lost its financial independence based upon the Quebec Revenue Act

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of 1774 and became dependent upon votes of supply, the lines of conflict between the two powers became sharply defined. 7 Such was in brief the basis of the constitutional battles which culminated in rebellion in 1837. After the failure of Receiver-General Henry Caldwell, who in 1819 was found to be 97,000 short in his accounts, the chief issue was whether or not the government should be completely dependent upon the assembly for financial support. The popular party was led by Louis-Joseph Papineau, son of the Montreal notary who had fought for the use of French in the first assembly in 1792, and who had carried dispatches for Carleton through the American lines in 1775–76. The younger Papineau, born in 1786 and educated at the Seminary of Quebec, became a lawyer after studying in D.-B. Viger’s office, but he entered the assembly in 1808 and soon devoted his energies to politics. He early took a leading role, succeeding Panet in 1815 as speaker, a post which he held for the greater part of the next twenty years. Even as a small boy at the seminary he had revealed an oratorical talent which eclipsed that of his father, who was regarded, along with Pierre Bédard, as one of the most eloquent French-Canadian spokesmen of the day. This talent was developed by Papineau’s wide reading, as was the natural independence of mind which made him one of the small group of members of the assembly who secretly met in 1812 to consider whether it might not be best to remain neutral in the coming conflict, and to let the British defend themselves from an American invasion. This course having been opposed by Bédard, Papineau cheerfully served as a militia staff captain during the three years of war. After his election as speaker, Papineau took no great part in party politics until 1820, but engaged in a study of history and constitutional law which later stood him in good stead. The ideas of Papineau at the real beginning of his political career in that year are reflected in his eulogy on the death of George III, in which he compared “the happy situation in which we find ourselves today with that of our ancestors when George III became their lawful monarch”: George III, a sovereign respected for his moral qualities and his devotion to his duties, succeeded Louis XV, a prince justly

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despised for his debauches, for his lack of attention to the needs of the people, and for his senseless prodigality to his favorites and mistresses. Since that epoch the reign of law has succeeded to that of violence ; since that day the treasure, the fleet, and the armies of Great Britain have been employed to provide us with an effective protection against all foreign danger; since that day her best laws have become ours.

Chap t e r V . T h e E m e r g e n c e of a Nation – Part I ( 1 8 4 0 – 49) The French Canadians had lost their struggle for survival by resort to arms; they were to win it by resort to the arts of peace. Spurred by the direct attack on their culture which Durham had made, and by the threat of the assimilation which he recommended, they soon overturned the political system which was designed to effect it, and gave vigorous evidence of their cultural strength. The period between 1840 and 1867 is one of the most notable chapters in the FrenchCanadian past. Faced with the prospect of national extinction, the French Canadians closed their ranks and won the peaceful victory which insured their national survival. They were favored by the curious fatality which befell the first governors-general of United Canada three of whom served a total of only seven years, and were overtaken by death, while two were repudiated at home and two in Canada. They were fortunate in their own political leaders, Louis-Hippolyte LaFontaine and George-Étienne Cartier, who displayed qualities of statesmanship as yet unrevealed by French Canadians: and they benefited by alliance with Robert Baldwin’s Upper Canadian Reformers. They also profited by disunion among the English-Canadian Tories, accentuated by economic disorders that were of less concern to a people as yet largely unconcerned with trade and commerce. Then French Canada produced a national historian, François-Xavier Garneau, and a national poet, Octave Crémazie, at the very moment when a sense of nationality was necessary for survival. A spirit of ­liberalism and progress infused new life into an ancient culture at the very period when it became essential that that culture should change or perish. This notable era began with French Canada deprived of representative government and condemned to extinction in a wholly British North America; it closed with the duality of

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Canada recognized by a new constitution and with a FrenchCanadian cultural tradition firmly established. 1 Such results were unthinkable at the outset of the period. The union of the two Canadas had been decided upon by the British government as a result of Durham’s Report, but the grant of responsible government was withheld. The first Union Bill proposed by the British government in 1839 was withdrawn because of the protests it aroused in Upper Canada. The Reformers in both provinces were given new hope by Durham’s backing of the principle of responsible government, while both groups of Tories united to denounce this dangerous suggestion. All parties were in some measure aggrieved by Durham’s frankness. A committee of the legislative council of Upper Canada declared that the adoption of Durham’s plan “must lead to the overthrow of the great colonial empire of England.” With a singular anticipation of the Tory annexationist sentiment of a decade later, this body proclaimed: If England withdraw her influence, and leave her governors to be the shuttle between colonial parties, no loyalty now existing among any of these parties will prevent their seeking another influence in the neighbouring republic, to replace the one needlessly withdrawn; and as the French of Lower Canada sought the alliance of their ancient enemies, the AngloAmerican population of the neighbouring States, to give them the means of overwhelming the British population for the time left without the countenance or support of the British government so will the losing party, in either colony, seek some external influence to aid their cause. England refuses the umpirage, and there can be no doubt but that it will be readily offered, before many years, to the United States. In the face of such provocative statements, the British government, which was not yet ready to consider parting with its colonies, sent out Charles Poulett Thomson, a disciple of Durham, as governor general, with instructions to gather further information on Canadian affairs to serve in drawing up a new Canada bill. To him Lord John Russell, the colonial secretary and his close friend,

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expressed the government’s anxiety “to consult and, so far as may be possible, to defer to public opinion in the Canadas on the subject of constitutional changes,” and at the same time its great reluctance to depart from the principles of a legislative Union of the two provinces a just regard to the claims of either province in adjusting the terms of that Union the maintenance of the three estates of the provincial legislature, the settlement of a permanent civil list for securing the independence of the judges, and to the executive government that freedom of action which is essential for the public good and the establishment of a system of local government by representative bodies, freely elected in the various cities and rural districts. In the face of continued Canadian agitation for responsible government, Russell further advised Thomson that he was to give no encouragement to the “movement for what is absurdly called responsible government.” He granted the existence of that system in England, but he did not favor its extension to the colonies: But if we seek to apply such a practice to a colony, we shall at once find ourselves at fault. The power for which a minister is responsible in England, is not his own power, but the power of the Crown, of which he is for the time the organ. It is obvious that the executive councillor of a colony is in a situation totally different. The Governor under whom he serves receives his orders from the Crown of England. But can the colonial council be the advisers to the Crown of England? Evidently not, for the Crown has other advisers, for the same functions, and with ­superior authority. It may happen, therefore, that the Governor receives at one and the same time instructions from the Queen, and advice from his executive council, totally at variance with each other. If he is to obey his instructions from England, the parallel of constitutional responsibility entirely fails; if, on the other hand, he is to follow the advice of his council, he is no longer a subordinate officer, but an independent sovereign. While objecting to the fundamental principle, Russell found none to “the practical views of colonial government recommended by

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Lord Durham.” In short, he proposed that the fruits of Durham’s plan be attained while the root was withheld. In his view this miracle was to be achieved by the exercise of forbearance on the part of both the executive and the assembly: The Governor must only oppose the wishes of the Assembly where the honour of the Crown, or the interests of the empire are deeply concerned; and the Assembly must be ready to ­modify some of its measures for the sake of harmony, and from a reverent attachment to the authority of Great Britain. Such an interest in harmony and such “reverent attachment” were hardly to be expected from those who had recently been at one another’s throats; only genius could make the policy briefly workable, and it was foredoomed to the failure which befell it within a few years. Not e   1 Excerpt from Mason Wade, The French Canadians, 1760–1945 (New York: Macmillan, 1955), 47–128, 220–2.

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Background for a New Approach to the 1791 Constitution Pierre Tousignant 1 History is made with the structure of the past.

At the annual meeting of the Canadian Historical Association in Winnipeg in June 1970, during his chairman’s address, historian Fernand Ouellet presented an “overview of advances in the social history of Lower Canada” that gave him an opportunity to reveal some interesting “prospects for research.” After pointing out the predominant place occupied by political history in French-Canadian historiography, he noted that it was “of capital importance to consider the evolution of constitutional and political forms in relation to the evolution of society.” While recognizing that the Francophile or Francophobe feelings of certain Governors were not without importance, he considered that it was “more fundamental to explore their vision of the political and social order.” These “capital” and “fundamental” concerns were precisely those that had guided my own research over the span of several years in order to defend a doctoral thesis on the genesis and realization of the 1791 Constitution. This convergence of views with a well-known historian is worth noting, to introduce readers to the overarching theme of my research. This study is not a summary of my thesis, but rather an explanation of an approach guided by a background study that is intended to view the establishment of a parliamentary regime in Lower Canada in a new light. It is addressed in particular to all those

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who, having already formed an opinion on the subject, are willing to think critically about the topics set out in each of the three parts of this study. Part One deals with the ambitions and frustrations of the Anglo-Scots colonial bourgeoisie; Part Two looks at the way in which the British leaders considered the political and social order as it compared to the structure of society in the home country; and Part Three shows how the 1791 Constitution met the objectives of imperial policy as part of the “Old Colonial System.” First, it is important to clarify certain points in order to avoid misunderstandings and misconceptions. We should specify that our main focus will be on events in Britain, since we are considering a time when, under the British Empire and in both theory and practice, the “Old Colonial System” prevailed, governing all relations and ties of economic and political dependence between the colonies and London. Any change to the constitutional order was a responsibility of the Crown and Parliament. In the specific case we are concerned with here, the legislation was drawn up as a Bill under the administration of William Pitt the Younger and submitted for approval to Parliament before receiving royal assent. As a result, it would not be possible to comprehend the meaning and scope of this imperial legislation without “exploring the vision of the social and political order” of the people who, directly or indirectly, helped draft it. We must also take into account the mode of operation of the parliamentary monarchy under George III since, as we will see, the 1791 Constitution was designed to apply the constitutional model in force in the home country to Lower Canada. To do this, we believe it is important not to dissociate this form of political government from the evolutionary state of socio-economic forces and production relationships that existed in England at a time when the political and social structure, before its transformation during the industrial revolution, still reflected the image of an old aristocratic regime. Clearly, it is through a study of English society itself, as it appeared in the second half of the 18th century, that we will be in a better position to understand the political objectives of the people who decided to establish a parliamentary regime in Lower Canada. In this way, we will be able to answer the key question raised by historian A. L. Burt as a conclusion to his classic work: Why, in 1791, did the authorities in the home country sacrifice the interests of Quebec’s Protestant minority “on the altar of French Canada”?

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I The Protestant minority in Lower Canada in 1791 numbered roughly 10,000 “Old British Subjects,” compared to around 150,000 “new subjects” of the Catholic faith. Concentrated in the cities of Quebec and Montreal, the largely bourgeois English-speaking minority drew its strength and dynamism from a spirit of capitalist enterprise that it was able to apply profitably thanks to its privileged position in a conquered country. The Anglo-Scots merchants who settled in the St. Lawrence valley in the wake of the conquering army lost no time in imposing their presence as the dominant social group. After successfully gaining a monopoly over the fur trade, the main source of wealth in the colony, these conquering bourgeois had become, less than thirty years after the cession of Canada to England, “the uncontested masters of colonial trade.” It was easy for them to demonstrate to Prime Minister Pitt, backed up by statistics, that “the whole trade of the province [of Quebec] is in the hands of, and depends on, the Old Subjects.” But, whatever its economic strength, this colonial bourgeoisie made up of sons of Great Britain was unable to ensure that its views prevailed on the authorities of the home country when the time came to divide the Province of Quebec and establish a house of assembly for the benefit of the majority population in Lower Canada. For almost thirty years the Protestant minority had clamoured for its rights and privileges as British subjects – and now, just as it was about to obtain them, it had to sacrifice its most cherished interests, faced with a two-fold division that forced the “Old British Subjects” in Lower Canada to seek refuge in a form of political conservatism that it only abandoned after the Union of 1840. For, in addition, to separating them from their loyalist compatriots in Upper Canada, the 1791 Constitution forced them to share legislative power with the newly conquered subjects. Following the Treaty of Paris in 1763, the British merchants expected to obtain a house of assembly composed exclusively of Protestants, and in the lead-up to the Quebec Act, they justified their demands by pointing out to the authorities in Britain that in addition to controlling trade in the colony, they also owned a major portion of its landed property, despite their small numbers. However, this was not a good time to demand their rights and privileges as British subjects, just when the officials of the Empire were confronted by a grave

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revolutionary crisis in North America. Faced with the agitation and insubordination of the American colonial assemblies, the government headed by Lord North had no difficulty in persuading Parliament to pass a provincial constitution that deprived the Protestant minority of the enjoyment of “English freedoms.” And to those who, like Edmund Burke, deplored the fate of these few thousand “Old British Subjects,” Solicitor General Alexander Wedderburn made a quick retort. A great deal has been said with regard to the British subjects ­settled in Canada. Now, I confess, that the situation of the British settler is not the principal object of my attention. I do not wish to see Canada draw from this country any considerable number of her inhabitants. I think there ought to be no temptation held out to the subjects of England to quit their native soil, to increase colonies at the expense of this country. If persons have gone thither in the course of trade, they have gone without any intention of making it their permanent residence; and, in that case, it is no more a hardship to tell them, “this is the law of the land”, than it would be to say so to man whose affairs induced him to establish himself in Guernsey, or in any other part of North America. This shows the degree of consideration given by an official spokesman for the government administration to those “Adventurers in Trade” who had come to Quebec “to mend their Fortune … and have been mostly left [there] by Accident.” The parliamentary debates triggered by the “Quebec Bill,” in addition to revealing the political objectives of the British authorities against a background of crisis in the empire, when the key goal could only be to ensure the unflinching support of the former settlers of New France, clearly show that the establishment of an assembly was inconceivable without the involvement of the Canadians who formed a large majority of the land-owning population. Faced with criticism from the Opposition warning of the danger of a non-representative colonial government that left the exercise of “arbitrary and despotic” power to the discretion of the Governor, the Prime Minister, Lord North, and Solicitor General Wedderburn emphasized the “essentially provisional” nature of the 1774 regime. “As soon as the Canadians shall be in a condition to receive an assembly,” stated Lord North, “it will be right they should have one. They will naturally

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wish to get the government into their own hands … [But] I do not think it would be wise, at present, to give them an assembly.” Alexander Wedderburn had already spelled out the reasons for this, with the support of his cabinet colleagues: To admit the Canadians to a place in that Assembly … would be a dangerous experiment with new subjects, who should be taught to obey as well as to love this country, and, if possible, to cherish their dependence upon it. Besides, it would be an exhaustible source of dissension and opposition between them, and the British subjects. It would be no less difficult to define the persons who should have a right to elect the Assembly. To exclude the Canadian subjects would be impossible, for an Assembly chosen only by the British Inhabitants, could no more be called a representative body of that colony, than a council of state is. Furthermore, the social split inherited from French colonization under the seigniorial system also had to be taken into account: To admit every Canadian proprietor of land would be disgusting and injurious to all the men of condition in the Province, who are accustomed to feel a very considerable difference between the seignior and the censier, though both are alike ­proprietors of land. Nor would it be beneficial to men of inferior rank; for every mode of raising them to the level of their superiors, except by the efforts of their own industry, is pernicious. It seems, therefore, totally inexpedient at present to form an Assembly. Based on the assurance given by Governor Carleton that the maintenance of the seigniorial system guaranteed perfect subordination “from the first to the lowest,” it was in the interest of the conquering power not to mix seigniors with their censiers in the same legislative body. The members of the lower seigniorial nobility – “the better sort of Canadians” – in the Crown Colony deserved the honour of being appointed as counsellors to the Governor, like the Lords the King chose to form his Privy Council. The Quebec Act, by authorizing Catholic subjects to sit on the Legislative Council, forced the Protestant minority to revise its position. In the aftermath of the American War of Independence, the

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British merchants agreed to throw in their lot with the Canadian reformist movement, which recruited its leaders from the ranks of the lower and middle bourgeois class, including merchants and store-owners alongside notaries and lawyers. In accordance with the wishes of these reformers, they jointly prepared the famous petition of November 1784, demanding that “the House of Representatives or Assembly be chosen by the Parishes, Towns and Districts of the Province, to be Composed of Your Majesty’s Old and New Subjects.” This was a strategy involving a considerable, and poorly calculated, risk. They hoped, thanks to their economic domination and the anticipation of favours from Britain, to be able to impose their point of view within the future legislative assembly; but we should point out that, when they allied themselves with the Canadian reformers, they were unaware that the government of William Pitt was preparing to divide the British forces by creating two sister provinces. They were doubly outflanked. First, they underestimated the desire of the representatives of the majority to obtain legislative power – a wish clearly expressed during the years leading up to the introduction of parliamentary rule; and, second, they made the mistake of believing that the British administration, still stunned by the American Revolution led by the colonial bourgeoisie of Boston, would nevertheless grant significant representation to the cities of Quebec and Montreal within the Assembly for Lower Canada. […] To claim that the Glorious Revolution of 1688 was the culmination of a “bourgeois” revolution that made possible “a social and political compromise that gave power jointly to the bourgeoisie and aristocracy” is to maintain confusion about the role played by the merchant and financial classes in political organization and the place they held in government administration during the 18th century. To clarify this question, we need to look at the work of J.H. Plumb, a leading specialist in the Walpole administration. Willingly or unwillingly, he says, the representatives of the business community had to yield to the rules of the aristocratic game imposed by the Whig oligarchy under George I and George II: The Whig party fused the interests of aristocracy, high finance, and executive government, a process extended by Walpole to embrace the bulk of the landed gentry. By doing so he put the noblemen and gentlemen back at the heart of English political

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society. This was to be of tremendous importance for England’s future development. The seventeenth century had witnessed the beginnings and partial success of a bourgeois revolution that came near to changing the institutions of government. In this, however, it never succeeded. The Revolution of 1688 and all that followed were retrogressive from the point of view of the emergence of the middle class into political power. Socially and economically they continued to thrive, but not politically. The power of the land and of commerce fused to create a paradise for gentlemen, for the aristocracy of birth; it thus became much easier to England to adopt an imperial authority, to rule alien peoples, and to train its ruling class for that purpose, rather than to adjust its institutions and its social system to the needs of an industrial system. This clarification is supported by the observations of historian H. J. Habakkuk, who describes how Hanoverian England became “a paradise for gentlemen”: In 18th-century England, social and political influence was even more directly dependent on land ownership than it was before 1688. During the 16th and 17th centuries, royal favour was an important source of political power; during the 16th century, the Crown was able to grant estates formed by land confiscated from monasteries to several “new men”. In such cases, political influence came first, and land followed. During the 18th century, this order was reversed: ownership of land became a ­condition for the sustained exercise of political power. This condition governing access to political power, at a time when the British parliament represented “land rather than people,” allows us to understand why the members of the bourgeoisie had to acquire wealth in the form of land in order to be elected and to gain access to positions in the government administration: “Wealth amassed in trade was laid out in landed estates and used to secure seats in the House of Commons, for both helped to lift their holders into a higher social sphere.” As the reign of George III began, Parliament had become the exclusive preserve of an aristocratic oligarchy comprising a few ­hundred Great Landlords who, through an established system of

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patronage, controlled over half of the seats in the House of Commons. Of 558 representatives, 489 came from England, 45 from Scotland and 24 from Wales. The English seats were divided as follows: 40 counties and 198 boroughs each had two representatives; 5 boroughs had one representative each; the City of London had only four representatives, while the universities of Oxford and Cambridge – the two centres of aristocratic education – were represented in the House by two members each, elected by “doctors and masters of arts.” In the 245 electoral ridings, there were only 300,000 electors, making up barely 5 per cent of the population; the towns, which had over 8 per cent of the members, contained only 125,000 electors. With such low elector numbers, the government administration, with support from the royal court, was free to indulge in widespread patronage, especially in what were known as “rotten boroughs.” Electors considered their vote “as the placeman his place or the contractor his contract: it was a piece of property which must be made to return a dividend, either in the form of favours from his patron or a cash equivalent.” In such conditions, it is easy to imagine how much it must have cost to win an election, and the favours each member expected to receive in return for the expense incurred. A closely-woven web connected the members of this aristocratic oligarchy. “The magnates needed the Court as much as the Court needed the magnates: without the resources of the borough patrons the Court could not bring its influence to bear on the House of Commons, but without the rewards of office for themselves and their clients the patrons could not maintain their own influence.” As a result, it comes as no surprise that, as pointed out by historian J. H. Plumb, “patronage has been, and is, an essential feature of the British structure of power … It was patronage that cemented the political system, held it together, and made it an almost impregnable citadel, impervious to defeat, indifferent to social change.” Electoral corruption was so widespread that it did not escape the attention of foreign observers. Denis Diderot judged the situation correctly when he related the impressions of his friend Baron d’Holbach on returning from England: “The monarch appears to have his hands free when it comes to good, but tied when it comes to bad; but his rule is equal, or even superior, to that of any other sovereign. Elsewhere, the court orders and expects obedience; there, it corrupts and does what it pleases, and the corruption of its subjects is perhaps worse over the long run than tyranny.” […]

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III The genesis of the 1791 Constitution can be traced back to the days after the Treaty of Paris which, in February 1763, finally sealed the cession of Canada to Great Britain. During the months that followed, various solutions were proposed in Great Britain to the problem of pacifying, organizing and administering this enormous conquered territory stretching from the Gulf of St. Lawrence to the source of the Mississippi, and incorporating the vast territory of the Great Lakes. The result was a draft of the imperial policy which, in the form of the Royal Proclamation of October 1763, was designed to reconstitute a colonial empire in a North American continent that was now entirely British. […] A few months after taking power, the administration of William Pitt the Younger replaced the defunct Board of Trade by a Privy Council committee known as the “Committee for Trade” which was instructed to inquire into the difficulties of supplying the British West Indies as a result of the new imperial policy. The inquiry provided an opportunity to hear a range of testimony concerning future prospects for the British colonization of North America. The members of the committee were enthralled by enthusiastic descriptions of a vast array of exploitable resources, which would make British North America “a future colonial granary, a vast reserve of naval stores and timber, and a potential market for British manufactures and West Indian rum.” The report they submitted was extremely optimistic, as shown in the following examples: By Information which the Committee received … it was clearly proved … that the Province of Canada is able to export great Quantities of Wheat and Flour for the Consumption of the British India Islands … It appears also to the Committee that great Quantities of Lumber can be furnished from Canada … Nova Scotia will soon be able to supply great quantities of Lumber, and if Grants of Lands are properly made and secured to the Inhabitants they will in about three years be able to furnish at moderate prices most of the Articles which the West India Islands can want from North America … The Loyalists who are lately gone there … are industrious, extremely anxious to cultivate the Land allotted to them, and to enter into any Plan by which they can exist under the British Government.

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Presented with such a dazzling picture, and before time had revealed the mirage, the British authorities were favourably disposed towards the demands made by the valiant loyalist pioneers who wanted to make the Canadian soil blossom and to transform the country into a land of abundance. In the same spring of 1784, the Loyalists received an assurance that they would obtain what they had demanded since their arrival in Nova Scotia: “A separate Government [which] shall be the most Gentlemanlike one on earth.” This separation provided a neat response to the political objectives clearly expressed by Sir Guy Carleton when called to testify before the Privy Council committee in March 1784: “The only firm hold that Great Britain has upon the remains of the American Dominions is certainly by means of the Loyalists.” Was it not useful to maintain the royalist fervour of these zealous defenders of the British constitution by protecting them against the pernicious influence of republicanism that had begun to infiltrate Halifax society? This is what William Knox recommended to Lord North in 1783, when he submitted a project for a separate provincial government for loyalists. His proposal was: To erect the country from the river St. Croix to the Gulf of St. Lawrence, and from the Line across the Isthmus to the Line of Canada, into a new province, placing the seat of Government on the river St. John … They will gladly receive a Constitution calculated to cherish monarchical principles, and to repress republican ideas, and of a tendency to bind them to Great Britain; and it will be the fault of Administration if such a Constitution be not established, as will render their union with this country happy and permanent. The “removed Loyalist haven in the North” was officially established in June 1784. The foundation of New Brunswick created a precedent that was seized upon by the Loyalists established in the upper regions of the St. Lawrence to call for the privilege of a separate provincial legislature. Thousands of new settlers had sought refuge in Canada, mostly former farmers from the colonies of New York and Pennsylvania; they had begun to develop the future province of Upper Canada after Governor Frederic Haldimand decided, in the fall of 1783, to settle them to the west of the seigniorial zone between Long-Sault and Baie de Quinte.

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Haldimand proved to be especially clairvoyant when he pleaded the cause of agricultural settlement with the British authorities: I am happy to find that there are in the Gift of the Crown, Lands of so good a Soil and in a favourable Climate, sufficient not only to settle the Provincial Corps when disbanded, but all such Royalists as may come from the Southward with a view to find an Asylum from the Tyranny and Oppression of their Countrymen. I foresee great advantages from this Settlement … The Royalists settled together in numbers will form a respectable Body attached to the Interests of Great Britain … Their industry will in a very few years raise in that Fertile Tract of Country great Quantities of Wheat and other Grains and become a Granary for the Lower Parts of Canada where the Crops are precarious and liable to be engrossed by a few designing and interest Traders. This vision of the future for a province destined to become the granary of Lower Canada was, at least, far more realistic than the idea of making British North America the main supplier of the British West Indies. Less than a year after the establishment of the Loyalists in the new townships of Upper Canada, their main spokesmen addressed a petition to the King to obtain a separate legislature “under the Government of a Lieutenant Governor and Council … appointed by Your Majesty, with the necessary Power of internal Regulation, but subordinate to the Governor and Council of Quebec.” They justified their demand by pointing to the necessity of a “Liberal System of Tenure, Law and Government” to promote the development and security of the new colony and to attract to Canada all Americans who wished to become once again British subjects “from their Attachment to Your Majesty, their ancient Predilection in favour of the British Government, their Dislike of the Republican Government they now live under, as well as from their Family, and Personal Attachments.” Sons of the mother country who had sacrificed “their Estates and Properties in support of Your Majesty’s Laws and Government” deserved to enjoy all the benefits of the British Constitution. The Loyalists’ demands were so completely aligned with the views of the British authorities that in the months following their petition to the King, William Pitt’s government seriously considering amending the constitution established by the Quebec Act to divide the province and create two separate governments. In early 1786, to

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provide for the return of Sir Guy Carleton as the Governor in Chief of British North America, the King’s Privy Council prepared “particular instructions” requiring him, upon arriving in Quebec, to survey the population “to obtain the most full and authentick information of the real sentiments of the Inhabitants” on the constitutional reforms demanded by the British merchants and the Canadian reformist group. The future Lord Dorchester was also asked to enlighten the British authorities concerning the advisability of creating a new province in Canada: And whereas from the great extent of Our province of Quebec, as well as the increased Number of Inhabitants, and in particular of those of our Loyal Subjects … who … retained their allegiance to Us, it may be expedient to divide the same, and erect for the present a distinct and separate province to the Westward: It is Our Will and Pleasure, that You do obtain the most particular information, and transmit Your Opinion, where and in what Manner the proposed division should be made, and also whether the Constitution of such new erected province, ought to be similar to what is at present, or may hereafter be established in Our province of Quebec, or whether the same should be similar to those established in Our other Provinces and Colonies in America. Neither Governor Dorchester nor the Chief Justice, William Smith, who was advising him, was able to answer any of these questions satisfactorily. Concerning these two administrators, historian Burt makes a severe but fair judgment: “Dorchester fumbled with the constitutional problem. It was to him a Gordian knot which he had neither the ability to undo nor the courage to cut, and Smith was not great help to him, for he too was baffled by the complicated situation in the colony.” After playing a leading role in the preparation of the Quebec Act, Sir Guy Carleton appeared completely overwhelmed by events on his return to Canada in the fall of 1786. Since being elevated to the peerage and now aged over sixty, he had lost some of his fervent ambition. He had resigned his commission as Governor of Quebec in 1777 and had then faced a series of bitter disappointments. His experience as Commander in Chief had brought none of the satisfaction he hoped for in this new appointment from the King. Instead of playing a key role as a peacemaker by reconciling the American

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colonies with the mother country as he had hoped, he had only been able to organize the evacuation of a few tens of thousands of loyalists. During his stay in New York in 1782–83, he met William Smith who encouraged him to dream of becoming, at some point in the future, the “Viceroy” of British North America. Carleton abandoned this dream after obtaining the title that he cherished above all: We had a long Conversation on the British Constitution which he admires as much as I do. He [Carleton] laughed heartily at my Idea that the King & Queen were the only slaves in the Nation. Assents that an English Peer had a more eligible Standing than any Crown’d Head. Ease, Dignity & Security. He thought my Observation a very good one that the Aristocracy gave a sleeping Dose to Ambition. There it terminated as there was no going higher. When arrived to the Peerage all Bustling ended for the Residue of a Man’s Days, and the new elevated Peer became a quiet Citizen. Carleton’s greatest ambition was realized on July 19, 1786, when he kissed the King’s hand and was elevated to the rank of peer of the  realm. Henceforth Lord Dorchester could live with “Ease, Dignity & Security.” Two years after Dorchester’s return to Canada, the Secretary of State reminded the Governor of the “Special Instructions” he had received before leaving London. Lord Sydney was careful to repeat the questions previously asked, and pressed him to provide the information considered essential to give Cabinet the ability, if possible during the upcoming session, to propose “such arrangements as may be found to be expedient for removing every just and reasonable cause of complaint that may exist among His Majesty’s Subjects, of any description whatsoever, who are Inhabitants of [the] Province [of Quebec].” The Minister, clearly concerned by the case of the Loyalists, specified that: As these People are said to be of the number desirous of the Establishment of the British Laws, It has been in Contemplation to propose to Parliament a division of the Province, to commence from the Boundary Line of the Seigneurie granted to Monsieur De Longueuil … But, before they take any step towards the execution of this measure, they [His Majesty’s Servants] are desirous of receiving the advantage of Your Lordship’s opinion

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how far it may be practicable or expedient; or, whether any other line or mode of separation would be preferable. Lord Sydney ended his letter with what, in fact would be the ­solution chosen in 1791 for Upper Canada: With a view to the execution of the Plan in question, it will be necessary for you to consider, previously to your Report upon it, what sort of Civil Government ought to be formed for its internal arrangement, & whether the Number and description of the Inhabitants and other Circumstances are such as do, or do not, make the immediate Establishment of an Assembly within this district, practicable and advisable. At all events It will be natural, as the greatest Part of these New Settlers are attached to the English Laws, that that System should be introduced as the general Rule, with such Exceptions or Qualifications as particular and local Circumstances may appear to require. In response to the precise questions posed by the Secretary of State concerning the future of British North America, Governor Dorchester was content to modify slightly the vague considerations formulated by Chief Justice Smith: A change of the laws and form of Government, by the ­introduction of an assembly, is chiefly promoted by the ­commercial part of the community, in the towns of Quebec and Montreal. The Canadian Habitants, or farmers, who may be stiled the main body of the freeholders of the Country, ­having little or no education, are unacquainted with the nature of the question, and would, I think, be for, or against it, according to their confidence in the representation of others. The Clergy do not appear to have interfered. But the Canadian ­gentlemen [i.e., the seigniors] in general are opposed to the measure. With regard to the division of the province and the fate of the Loyalists, Dorchester found nothing more positive to recommend than to make no substantial change: A division of the province, I am of opinion, is by no means adviseable at present, either for the interest of the new, or the

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ancient districts, nor do I see an immediate call for other regulations, than such as are involved in the subject of the general jurisprudence of the country. Indeed it appears to me, that the western settlements are as yet unprepared for any organization, superior to that of a county. But … no time should be lost in appointing a person of fidelity and ability, in the confidence of the loyalists, to superintend, and lead them … under the title of Lieutenant Governor of the four western districts [Luneburg, Mecklenburg, Nassau and Hesse]. However, if it was decided to create a new province “by the wisdom of His Majesty’s Councils,” he saw no reason to deprive the Loyalists  of Upper Canada of the advantage of having representative institutions. Faced with such lofty detachment, William Wyndham Grenville, a first cousin of Prime Minister Pitt, was less patient than Lord Sydney and decided to take action soon after his appointment as Secretary of State in June 1789. He plunged resolutely into the voluminous Canadian correspondence, determined to find a solution to the thorny constitutional problem, “the most important and extensive of any of the subject which [he] found in the Office.” In less than three months, he was able to complete a draft for a new constitution, as he explained to the House of Commons: As soon as Parliament was prorogued [on August 11, 1789], he applied himself to the business with the utmost care and consideration. The House would naturally see that it must unavoidably cost him some time to study the subject, to digest his own opinions respecting it, to compare them with the opinions of others of His Majesty’s servants … With great application, and unremitting industry, he had been able to accomplish all these objects in less than three months, and had not formed a mere design or outline … but had actually matured the whole, and reduced it to the shape of a Bill, such as he thought fit to be ­submitted to the consideration of that House. And he apologized for having to delay the tabling of his Bill until he had received the comments of Lord Dorchester “on many points of detail which required local assistance.” During the three months (August to October, 1789) he spent preparing his constitutional plan, Grenville consulted the key members

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of Cabinet, including the Lord Chancellor Edward Thurlow – the King’s chief adviser – who had formerly, as Solicitor General, defended the Quebec Act which he considered “the only sort of Constitution fit for a Colony.” While recognizing that the circumstances had changed since 1774, Lord Thurlow continued to believe that full control over legislative powers by the Crown was the best way to guarantee the colonies’ dependence on the home country. In response to Grenville, who suggested that the lack of a constitutional model from Britain had been one of the main reasons for the defection of the American colonies, Thurlow replied: You seem to refer it to the want of more resemblance in their constitution with that of Great Britain. I have been used to think it more referable to the want of connection and dependence in the form of their government upon the mother country … It seems clear, that, if political liberty, which is the governing principle of our constitution, be established in a colony, the sovereignty which, following that principle, must be distributed in certain proportions among the people, will also be established there; and the immediate effect of that will be an habitual ­independent attention to a separate interest. Failing the ability to maintain the Crown’s full sovereignty, Lord Thurlow hoped that Canada’s economic dependence on Great Britain would preserve at least its political subordination: “As a seat of commerce, our present situation in that respect goes a great way to secure it.” He remained sceptical, however, about the possibility of retaining for the British government, as Grenville proposed, “a great degree of weight and influence,” through the creation of a Legislative Council based on the model of the House of Lords. The formation of a body made up of a hereditary aristocracy appeared to him of doubtful efficacy: “If placed in hands unequal to it, will be only despised; but if lodged with families of permanent consideration, will grow, as I fear, into an independent interest.” Aware that he could not stop the course of history or prevent an inevitable split between the interests of the colonies and the home country, the Lord Chancellor accepted Grenville’s plan as a sort of fatal necessity. Backed up by the Lord Chancellor’s assent, the Secretary of State was able to obtain authorization from the King to submit his Bill for approval to Parliament. However, like the Crown’s advisor, George

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III expressed regret at the idea of partially revoking the Quebec Act, which he sincerely believed to the founded “on the clearest principles of justice and humanity” with the aim of promoting “the happiness of my Canadian subjects,” as he had stated when he giving royal assent to the Act on June 22, 1774. “I am sorry any change is necessary,” the King wrote to Grenville, “for I am aware to please all concerned is impossible, and that if things could have gone on it its present state for some years, it would have been very desirable”; and with a touching sign of consideration for his “Canadian subjects,” he noted that Grenville’s plan “has been drawn up with as much attention to the interest of the old inhabitants who, by the capitulation, have every degree of right to be first attended to.” Grenville’s project was based on economic considerations, political factors and constitutional principles, as detailed in a working document entitled “Discussion of Petitions and Counter Petitions RE Change of Government in Canada.” This brief underlines two major concerns for William Pitt’s administration: the development of British colonization in North America, and the funding of British colonization. These concerns are found alongside political objectives designed to maintain and preserve control by the central government via a constitutional regime placed firmly under royal control. Grenville’s brief begins by analyzing the main arguments put forward in the numerous petitions and counter-petitions that had been piling up in the Secretary of State’s office since 1783. The selection of specific arguments by Grenville – both for and against constitutional reform – illustrate that the proposed solution was dictated in large part by the economic imperatives resulting from the loss of the former American colonies. Unfortunately, this solution did not produce the desired result because the same economic imperatives led to a form of liberalization that directly contradicted the new direction given in 1783 to imperial policy under the “Old Colonial System.” Grenville was clearly aware of the disadvantages of this result: “With a view merely to retaining dependence, a legislation residing in the mother country might for a time be the best of all institutions; but that it has so evident a tendency to check and depress the prosperity of the colony, that it might almost be doubted whether such a dependence be worth retaining.” However, the negotiator of the future, and first-ever, trade agreement with the United States (the Grenville-Jay Treaty of 1794) remained so much in thrall to the feudal mindset characteristic of the English aristocratic elite

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that he was unable to free himself of the ideological chains that bound him to the protectionist system of the First British Empire. In his analysis of the reasons for and against constitutional reform, Grenville emphasized two determining factors among his concerns. First, he noted that British North America was destined to be p ­ eopled almost exclusively by British settlers: From the great, & continued influx of New Settlers, & from the resources of the country itself, there is every reason to believe, that the wealth & population of the Province are rapidly increasing; but the increase has hitherto been almost entirely confined, & will probably continue to be so, to the British & American settlers. From this point of view, it appeared to Grenville indispensable to act on the promises given in the Royal Proclamation of 1763; how could the implementation of the promises be delayed any further, while the number of loyalists was increasing from year to year? Subjected as they were to the laws, usage and custom of the French-­ Canadian majority, they were unable to enjoy their rights and privileges; since they already formed a majority among British settlers in ­Canada, why not offer them the same advantage of “English freedoms” as their compatriots in Nova Scotia and New Brunswick? It was also important to relieve Great Britain of the burdensome expenditure involved in supporting the colony, which amounted to almost £100,000 annually, in addition to military pay. Since 1778, the British parliament had officially renounced its right to levy taxes on the colonies to pay for expenditure under the authority of the local administration and for general defence; by establishing a House of Assembly, the power to tax would be given to the people’s elected representatives. This sharing of the fiscal burden had become so pressing that, as historian Harlow notes, “the financial case for running the political risk of establishing a predominantly French Assembly in Quebec was strong – almost to the point of compulsion.” Grenville identified three main objections among those made by the Canadian nobility to the establishment of a House of Assembly: (a) fear of taxes; (b) fear of a preponderance of “Old British Subjects” in the Legislative Assembly; and (c) fear of English laws. In reply to the first objection – the fear of taxes that the seigniors had used to rouse the local population against any constitutional reform – the

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Minister replied that the Canadians could choose to be exempt; once they understood the system, they would prefer to be taxed by their own representatives rather than by legislative councillors appointed by the Crown. To the last two objections, Grenville’s response lay in the establishment of two provincial legislatures: If these two bodies, & Classes of Men, differing in their ­prejudices, & perhaps, in their interests, were to be consolidated into one legislative body, dissensions, & animosities might too probably prevail; & the success of either party might, in fact, be injurious to the other. It should seem therefore, that the natural remedy, for this, would be, the separation of the province into two districts, having distinct Legislatures, in which, the separate interests of the old, & new Subjects might preponderate, ­according to the respective proportion of population, & of wealth. In preparing the draft of his new constitution, Grenville took into account the remedies previously prescribed by William Knox and Sir Francis Bernard. Convinced that the constitutional deficiencies of the former American colonies had been one of the main causes of their defection, he thought he would be able to ward off the same danger by establishing an independent legislative body “to operate as a check, both on the misconduct of Governors, & on the democratical Spirit, which prevailed in the [American] Assemblies.” This independent legislative body was expected to fulfill the same function as the House of Lords, which formed “the Aristocratical part of our Constitution” and create, in the future provinces of Lower and Upper Canada, “a respectable aristocracy, as a support, & safeguard of the Monarchy.” To add even greater respectability to the holders of this intermediate power in a “mixed and balanced constitution,” they would be given marks of honours or distinction and hereditary privileges. If, in the thirteen American colonies, the aristocratic component of the British constitution had been missing, the monarchic element  represented by the Governor also appeared to have been found wanting: The nature of the Situation allotted to the Governors in America, the limited extent of their Authority, the dependence,

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in which they frequently found themselves, on the Colonies even for their own Support, & Maintenance, the little consequence annexed to their Station, &, sometimes, the character, & rank of the persons sent there, were but ill adapted to remedy the defect arising from the absence of the Sovereign. Since the Governor, unlike the King, could not dispense honours and stipends “to animate the exertions of individuals, & to secure their attachment to the existing form of Government,” Grenville planned to enhance the prestige and influence of the executive authority by consolidating the provincial governments under a single figure who would wield both civil and military power. As soon as Grenville had obtained authorization from the King to  submit the Bill to Parliament, he broke the news to Governor Dorchester. The moment appeared propitious, since the situation in France “gives Us little to fear … The opportunity is therefore most favourable for the adoption of such measures as may tend to consolidate Our strength, and increase our resources.” He asked the Governor for his help in implementing the plan, while warning him that the decision to separate Upper and Lower Canada was irrevocable, as he explained in his letter: a considerable degree of attention is due to the prejudices and habits of the French Inhabitants who compose so large a proportion of the community, and every degree of caution should be used to continue to them the enjoyment of those civil and religious Rights which were secured to them by the Capitulation of the Province, or have since been granted by the liberal and enlightened spirit of the British Government … Every consideration of policy seemed to render it desirable that the great preponderance possessed in the Upper Districts by the King’s ancient Subjects, and in the Lower by the French Canadians should have their effect and operation in separate Legislatures; rather than that these two bodies of People should be blended together in the first formation of the new Constitution, and before sufficient time has been allowed for the removal of ancient prejudices, by the habit of obedience to the same Government, and by the sense of a common interest. The precise directives of the Secretary of State did not leave Lord Dorchester much latitude to amend the Bill. The delays involved in

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exchanging correspondence with the Governor and the final detailing forced the government administration to postpone the official tabling of the draft Constitution Act to the start of 1791. No longer able to rely on the presence of his cousin, now Lord Grenville, in the House of Commons, Prime Minister Pitt alone faced a barrage of criticism from the Opposition following the first reading of the “Canada Bill” on March 4. The speech by a delegate of the colonial bourgeoisie, Adam Lymburner, before a Committee of the House on March 23 provided ammunition for the Opposition’s criticism of the administration policy. One of the House’s most famous orators, Charles James Fox, a brilliant opposition critic, found ample material in the draft Canadian constitution for a scathing attack on the government’s position. This leader of the reformist wing of the Whig party was known for his republican sympathies, and he took full advantage of the debate to earn some political capital. Historians from English Canada have tended to retain, of all Charles James Fox’s criticism, only his position against the division of the Province of Quebec: “The most desirable circumstance was, that the French and English inhabitants should unite and coalesce, as it were, into one body, and that the different distinctions of the people might be extinguished for ever.” It would be a mistake to see in his argument the expression of a defined policy of assimilation, since the avowed goal of Fox, as Leader of the Opposition, was simply to catch out William Pitt’s administration. In fact, the only amendments to the Act that Fox was able to have adopted, despite the extent of his criticism, actually worked in favour of the FrenchCanadian majority in Lower Canada: an increase in the number of members from thirty to fifty, a reduction in the “qualifications” required to be an elector, and a renewal of the Assembly every four years rather than seven. Prime Minister Pitt replied to the objections raised by Fox against the separation of Lower and Upper Canada in a firm, but not aggressive, way: As to the division of the province, it was, in a great measure, the fundamental part of the bill; and he had no scruple to declare that he considered it as the most material and essential part of it. He agreed with the honourable gentleman, in thinking it extremely desirable that the inhabitants of Canada should be united, and led universally to prefer the English constitution and

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the English laws. Dividing the province, he considered to be the most likely means to effect this purpose, since by so doing, the French subjects would be sensible that the British Government had no intention of forcing the English laws upon them, and therefore they would, with more facility, look at the operation and effect of those laws, compare them with the operation and effect of their own, and probably in time adopt them from conviction. There can be no doubt that William Pitt hoped that the Canadians would adopt English laws, but from there to claim that the Anglici­ zation of the Canadians was one of the main objectives of the Grenville plan is to deny all meaning to the colonial policy of the British government. It is important to distinguish between the arguments used to justify a piece of legislation and the reasons on which it is actually based. If we look at the fundamental reasons for the ministerial decision to create two separate provincial governments in Canada, it is impossible to detect any intention or desire to translate a policy of assimilation into legislative terms. The Prime Minister clearly explains the political concerns of his administration concerning the division of the Province of Quebec: It appeared to His Majesty’s Ministers … that there was no probability of reconciling the jarring interests and opposing views of the inhabitants, but by giving them two Legislatures … It seemed to His Majesty’s servants the most desirable thing, if they could not give satisfaction to all descriptions of men, to divide the province, and to contrive that one division should consist, as much as possible, of those who were well inclined towards the English laws, and that the other part should consist of a decided preponderancy of the ancient inhabitants, who were attached to the French laws. Recognizing that it was practically impossible to give satisfaction “to all descriptions of men,” in other words to all the various groups making up the colonial population, he specified the reasons that had forced the British government to sacrifice the interests of the Protestant minority in Lower Canada: It was perfectly true … that in Lower Canada there still remained a certain number of English subjects, but these would hold a much smaller proportion than if there was one form of

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Government for every part of the province. It was in Upper Canada particularly that they were to expect a great addition of English inhabitants. The consequence was, that if it was not divided from the rest, the Canadians forming a majority of five to one, the grievance would be every year increasing in ­proportion as the population as the population increased. This explanation was clearly understood by Edmund Burke, the famous author of Reflections on the Revolution in France, who stated, as he lent his support to Grenville’s plan, “An attempt to join people dissimilar in law language, and manners, appeared to him highly absurd … Let the Canadians have a constitution formed upon the principles of Canadians, and Englishmen upon the principles of Englishmen.” When the Committee of the House of Commons reviewed the various sections of the Bill, the purely constitutional aspects drew the most attention and the way in which the British constitution would apply in Canada sparked a discussion between the head of the government, William Pitt, and his chief adversary in the House, Charles James Fox. Despite their opposing allegiance to the Tory and Whig parties, these two illustrious representatives of 18th-­ century aristocratic English society both had boundless admiration for the political forms of British government, which they revered. Despite their political divergences, they shared the same vision of the political and social order sanctioned by the British constitution. Their respective speeches on the way in which it should apply in Canada offer the best defence and illustration of the feudal mindset that provides the subtext for “Lord Grenville’s Act.” Charles James Fox focused most of his criticism on the composition of the Legislative Council. Instead of making its members the servile instruments of the Crown, he suggested establishing a genuine legislative body, “independent of the Governor and the people,” by allowing only the richest landowners to elect councillors, rather than by organizing a poll of the population, as was the case for the election of representatives to the House of Assembly: By this means they would have a real aristocracy chosen by ­persons of property from among persons of the highest property, and would thence necessarily possess that weight, influence, and independency, from which alone could be derived a power of guarding against any innovations that might be made, either by the people on the one part, or the Crown on the other.

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Fox was careful to reassure the members of the House. The goal of his reform was in no way to question the division of powers as established by the British constitution. On the contrary, it was because of his high esteem for the noble House of Lords that he objected to the reconstitution in North America of “a servile imitation of our aristocracy … a very inadequate substitute – a semblance but not a substance.” While rejecting Fox’s reform proposal, Prime Minister Pitt seized the opportunity to heap praise on the British constitution: Aristocracy was … the true poise, as the right honourable gentleman had emphatically stated it, of the constitution; it was the essential link that held the branches together, and gave stability and strength to the whole; aristocracy reflected lustre on the Crown, and let support and effect to the democracy, while the democracy gave vigour and energy to both and the sovereignty crowned the constitution with authority and dignity … Our aristocracy was not merely respectable on account of its property, though that undoubtedly was no small consideration in the scale of its respectability; but it was essentially respectable for its hereditary honour … He should lament, therefore, to create an aristocracy by a selection from property alone, or by making it elective, as in either case it would render the poise nearer to the people than it was to the Crown in the British constitution. While admitting that it was impossible to form a new colonial nobility enjoying the same degree of respect as the House of Lords, whose members could trace their lineage back to Antiquity, he still believed it was possible for it to attract “the same degree of respect as had accompanied the origin of our nobility, and succeeding ages would bestow all the rest.” Besides, was there not already something in the manners, customs and usage of the French Canadians “something that peculiarly fitted it for the reception of hereditary honours”? Did some seigniors not possess a sufficient degree of “property and respect” to hope that the prosperity that would inevitably result from the new constitution “would make them hold a fair weight in that constitution, and imperceptibly clothe them with that respect and influence that ought to belong to the aristocratical branch of a free Government”? In this way, he firmly believed, the ties between the colony and the home country would be strengthened.

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The parliamentary debates ended with this homage to the Crown and Aristocracy. While, in France, the revolutionary movement had already launched its assault on the monarchy and the privileges of the nobility, within the august chambers of the British parliament the value system of the rural 18th century still held sway. Grenville and Pitt embodied the ideology of an aristocratic society in which land ownership constituted the foundation of political power; Durham and Russell, fifty years later, would represent the ideology of the conquest of world markets by the industrial bourgeoisie of the 19th century. The French Canadians, forming as they did a majority of landowners, benefitted from the feudal conception of the social and political order promoted by the imperial authorities for the thirty years following the cession of Canada to England. The bourgeois values of the Protestant minority would eventually prevail, even if they were initially sacrificed in 1791 “on the altar of French Canada.” Translated by Benjamin Waterhouse

Not e   1 Excerpt from Pierre Tousignant, “Problématique pour une nouvelle approche de la Constitution de 1791,” Revue d’histoire de l’Amérique ­française 27 (1973), 181–234.

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A History of Canada Arthur R.M. Lower 1

C h a p t e r 19 Liquidating the Rebellions The rebellions may have been small affairs from a military standpoint and in the lives they cost, but the blood spilt in ’37 was sacrificial blood, accomplishing as bloodshed often does, what years of talk could not have done. It sapped the vitality of privilege and rendered reform imperative. The rebellions gave to the French, after an interval, the control of their own province and to the Upper Canadians opportunity to work out a compromise between exploitation and settlement. The revolt of the French was more successful than that of the Upper Canadians, for it represented the movement of a people against their masters, and had not a fortunate conjunction of statesmen with events halted the revolutionary process at the stage of provincial autonomy, it might well have carried New France into the channels in which Ireland and India later found themselves. In Upper Canada, where the abuses in government that usually cause revolt were more serious, no such fate threatened and the settlement hardly had the same satisfactory clarity. Had the rebellion gone farther; the aftermath might have been a clearer appreciation of self-government, a firmer establishment of democracy, a more decisive rout of privilege, than actually occurred. The fact that the rebellions had not been primarily against the British connection made them the more difficult for the Imperial government to understand. What was it the Canadians wanted? Reasonable concessions the British authorities were ready to accord.

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Their difficulty was that they did not imaginatively grasp actual colonial conditions. Canada was far away and not overly important in the British scheme of things. To many of the supporters of the Melbourne ministry (1834–41), it was the place from which came inferior timber at high prices, a colony that had succeeded in imposing its will, through the differential timber duties, upon the mother country. But even easy-going Melbourne had to do something when rebellion broke out. 1 . D u r h a m , “ L or d Hi gh E xe c u tio n e r” No other solution to colonial ills being in sight, the Imperial authorities resolved to try, for the second time, the usual procrastinating device of a Commission of inquiry and the Durham mission was the result. Lord Durham, son-in-law of Earl Grey, the previous Prime Minister, immensely rich, an aristocrat of the aristocrats, a man of first-class abilities, an experienced politician, well to the left in his views, was one of the uneasiest political bedfellows of the nineteenth century. “Radical Jack,” as he was nicknamed, had been one of the principals in forcing through the Great Reform Bill. Lord Melbourne had for a time solved the problem presented by such a troubler in Israel by inducing him to accept a special embassy to St. Petersburg, but now Durham was back again, perhaps looking to the Whig leadership. What more natural than to get him out of the way again? Characteristic as the solution was, the easy-going Melbourne was no doubt not moved entirely by political expediency; everyone recognized Durham’s abilities and when Melbourne offered him the highsounding post of Governor-General and Lord High Commissioner of British North America, with unparalleled authority, the arrangement met with general approval. Both in personality and ability, Durham was fitted for the difficult task ahead. A man of unbounded self-confidence, nothing could have suited him better than the chance to order the affairs of an entire world, even if one of the small dimensions of the St. Lawrence colonies. He was an intellectual who was fond of pomp, as witness his elaborate stage-entrance to Quebec, where on landing, he mounted a great white charger, and his retinue behind him, rode in solemn state to the Castle of St. Louis. Whether this made the expected impression on the natives is not recorded. In him eccentricities were coupled with high intellect; his was the first outstanding English brain to occupy itself with the affairs of British North America. His

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character combined great rectitude with an attractive but difficult personality. An anecdote will illustrate this. Durham hated tobacco. On his voyage up the St. Lawrence to Upper Canada, strict instructions were given that no one on board must smoke. Once late at night, a whiff of tobacco smoke penetrated the Governor’s cabin. Immediately orders were given to search the ship for the culprit. Finally he was discovered, squatting in hiding behind one of the boats. It was Vice-Admiral Sir Charles Paget, snatching a furtive cigar before turning in! Perhaps it was imperiousness of temperament that led him to surround himself with certain men that a more tractable judgment would have rejected. Such were Thomas Turton, who had been divorced, and under peculiarly malodorous circumstances, and above all, Gibbon Wakefield, the man who had served a term in jail for abducting a young heiress. Wakefield had repented, but the fact that he had given more and better thought to colonizing that any other man in England was not sufficient to obliterate his lurid past. Although he came out privately and had no official connection with Durham, everyone knew that they were close, and he never ceased to be the object of bitter and uncharitable attacks by such journals as The Church. Charles Buller, the principal secretary, was too clever and too funny to meet with the approval of ordinary men. The Durham mission came to shipwreck on these rocks of personality and character, but it was the unconventional ability its members possessed that produced its spectacular results. Durham began well by avoiding the invariable mistake of his predecessors: he refused to be taken into camp by the oligarchical clique. Keeping them at arms’ length did not increase his popularity with the “best people.” He spent the summer of 1838 in close investigation of the situation in Lower Canada, both personally and through various “Commissions” under his secretaries while at the same time he carried on the day-to-day tasks of administration. His evident desire for justice at first attracted French confidence. Then towards the end of the summer he appointed to the Commission on Municipal Institutions and as personal adviser, Adam Thorn, editor of the Montreal Herald, a Scot who had only been in the country a few years but who had become one of its most reactionary Tories, a man unrestrained in his hate and contempt of French Canadians. Was he,  after all, falling into the snares of the Château Clique? The French reserved judgment.

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Durham’s largest immediate problem was what to do with the political prisoners in the province, men who had taken part in the rebellion but whom no French-Canadian jury would convict, and whose very conviction would have widened still further the gulf between the races. To release them unconditionally was dangerous. Durham, never troubled too much by any sense of the limitation of his powers, decided to banish them to Bermuda, an island not within his jurisdiction. When the news got back to England, Lord Brougham, a man as difficult, as brilliant, and more unstable than Durham, with whom Durham was not on good terms, attacked his action and secured considerable support in the Lords against it. To the everlasting dishonour of Melbourne, he weakly yielded and refused to uphold Durham’s conduct. Durham himself first heard about his disgrace through the press. He acted characteristically in issuing a proclamation that almost suggested to the province that it would only get its abuses remedied by fighting again, resigned, and went home. 2 . T he Dur h a m R e p ort a nd I ts Re ce p tio n On the voyage back, the Report which was to be so formative in the future of Canada and the British Empire was put together. Much of it must have been prepared before the party left Quebec for it was published in a journalistic “scoop” by The Times just a few weeks after the frigate Inconstant landed Durham at Plymouth. It was formerly a favourite controversy of historians to quarrel about the authorship of the Report, some wishing to give the chief credit to Gibbon Wakefield. Wakefield as leader of the group of “systematic colonizers,” had been in close touch with Durham for some years and their ideas must have been familiar to each other. Wakefield’s was the more original mind: his efforts and his analysis of problems relating to immigration, settlement and land policy place him along with Richard Hakluyt and William Penn in the extension of the English race overseas. South Australia and New Zealand are his monuments. But Durham was still the “Radical Jack” of the Reform Bill, his mind was still fertile in generous political ideas. The Report was probably a composite, for it reflects the ideas and style of the two men, if not of others of the party too. The important thing is not its authorship since, after all, the leading reform idea in it, Responsible Government, belonged to Robert Baldwin, not to this group. But in its extraordinary incisiveness, and its bold constructive proposals the Report to

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this day remains the best and most readable book on the Canada of the 1830s. On this trip to Upper Canada, Durham had had a short conversation with Baldwin who sent on to him a memorandum on his central concept, Responsible Government; this appeared as one of the two leading recommendations of the Report – self-government in internal affairs. Only three or four subjects – the constitution, foreign relations, colonial trade with foreign countries, the public lands – really concerned the Imperial government: all else could be better looked after on the spot. Thus, quite incidentally, the important federal principle of the division of powers found itself incorporated in the Report. For local self-government there appeared only one recipe, the equally important idea of Responsible Government: let the governor follow the advice of those who could get popular support behind them, as reflected by a majority in the Assembly. Then Crown, advisers, legislature, and people would be brought into line, and harmony instead of discord would result. The other recommendation was not so happy. Durham’s energetic and “progressive” nature did not lend itself to understanding a people with so different a view of life as the French; he saw their indifference to material progress, their primitive dwellings and farming methods, he noted their indifference to education, and he searched in vain for French-Canadian literature, for a single French-Canadian book. Their very language was not the French that he knew. He concluded that this simple peasant people was sunk in apathy and that the greatest kindness to them would be to initiate them into the blessings of English civilisation by gradually making them into Englishmen. This need not be done by force. Who, when given such an opportunity, would refuse it? His position was not much different from Pitt’s 48 years before, when he professed to believe that the very image and transcript of the British Constitution then given to the Canadians would make them hasten to abandon their old institutions and culture. The gate to “anglification” was to be opened by the simple device of the union of the two Canadas: the powerful contagion of English example would then do the rest. As a result, few good words have ever been said for Durham in Quebec. French-speaking Canadians recognize his sincerity and his magnanimity in other directions, but they find it hard to forget that he said they had no culture or language worth preserving and that what little they had they ought to be content to lose. The Report, by the emotion it

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stirred up among the French, must be considered one of the principal instruments making for the preservation of French nationality. The supreme excellence of the Report, aside from its recommendation of local self-government, consists in the extraordinary penetration of its analysis. Who is there who does not know those classic phrases: “I expected to find a contest between a government and a people: I found two nations warring in the bosom of a single state. I found a struggle not of principles but of races.” Englishmen had little in their own experience to enable them to understand the racial situation in Lower Canada, though they could have found it across the Irish Sea and this failure to understand had been a large part of the trouble. Durham put his finger on the difficulty at once. Further, he described in exact terms the natures of the two struggling civilizations. All the more wonder then that he failed so signally to understand one of them. But apparently he was imbedded too far in the individualistic, Protestant commercialism of the time to be able to see virtue in medievalism. Yet he had no sympathy with the narrow commercial group in Lower Canada that had succeeded in getting so much power into its hands and had been so kind with public favours to its members. A Whig oligarch himself and the son-in-law of a Whig oligarch, Earl Grey, he and his father-in-law had fought through into law the bill which went far to destroy English oligarchy; he was not likely to have much sympathy with the rather shabby version of oligarchy that he found on the banks of the St. Lawrence. Nor did he have any more regard for the great gentlemen who composed the Family Compact at Toronto, and brief as his sojourn in Upper Canada was, he subjected them to as severe an exposure as their opposite numbers in Lower Canada received. Political analysis was the area in which he might be expected to excel. But the public land situation was laid open with the same sharp scalpel, though since this was Wakefield’s special interest, this section of the Report was most likely worked up by him. Methods of land-granting were reviewed and its abuses brought to light. Robert Gourlay’s concern received abundant justification. Wasteful granting, fraudulent grants, the difficulties the ordinary settler had in getting title, all these were condemned. No exception was made for the Clergy Reserves. The Report took the position that most fair-minded English officials (invariably Anglicans themselves) arrived at when they saw the situation with their own eyes. In a country where

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Anglicans were in a minority, a country which cherished social equality and hated the idea of establishments of religion, it was not only idle but wicked for a little group of wilful men to attempt to barricade themselves behind the privileges of Anglicanism. The Simcoes, the Maitlands, the Strachans, in their narrow insistence on denominational privilege, were not advancing the interests of their church but retarding them. Durham drew a sharp line between ecclesiasticism and religion; his condemnation was reserved for the former. For ministers of religion, wherever found, he had nothing but good words. He praised the priests of French Canada as men devoted to their people, pious, earnest and moral. For the intolerance that, especially in the upper province, made a virtue of Catholic-baiting he had words of condemnation, words which fell with biting emphasis upon the professional Protestants, the rowdy, intolerant, power-seeking Orangemen. The Report covered every other important public subject: immigration, education, local government, legal institutions, hospitals, finance. On each one of these its words were trenchant and its views incisive. They all sprang from the same soil, that of liberal and cultivated English minds, from the great English Whig tradition whence had come the American Revolution (and indirectly the French Revolution), whence had come the Reform movements in British North America. The Report constituted both in spirit and in letter, the complete answer to Toryism. It spoke, in different terms, the same language as the elder Pitt, Edmund Burke, or Thomas Jefferson. In time to come its spirit was to be reborn in the conduct of Lord Elgin, the utterances of Sir Wilfrid Laurier and President Wilson, or the dicta of the Balfour Report of 1926. It is as a great liberal document that it takes its place as one of the foundation stones of the modern English-speaking world. In both Great Britain and Canada the Report had a mingled reception Upper Canadian reformers welcomed it warmly. The French saw in it an instrument for their extinction: the “anglification” suggestions blinded them to the more positive proposals and they remained suspicious and sulking. It was, however, among the loyalest of the loyal that the greatest storm arose: Tories everywhere cursed it. Durham’s proposals, they averred, were merely rewards to rebellion. To put them into force would be to encourage the King’s enemies and betray the friends of government. The Melbourne Government, which was becoming weaker every day, was only too

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glad to take refuge in the confused state of domestic politics and postpone action. So 1839 dragged on, with only stop-gap governments in the affected colonies.

C h a p t e r 20 A Revolutionary Decade: The End of the Old Colonial System, 1839–49 1 . B r it i sh Fr e e T r a de a nd C o l o n ial Self-G ov e r nm e nt The British colonial system had evolved in an empire of dependent colonies: it had suffered its greatest failure when former colonies had refused to remain dependent any longer. Now, in the second Empire, the wheel had come full circle: an accumulation of abuses had led to rebellion, and methods of reconstruction either had to be worked out or the Empire would be broken up once more. Was the colonial relationship consistent only with dependence, or could some other relationship be found? Durham had pronounced a decided affirmative, Sydenham had made the first tentative experiments, but the main test lay ahead. Would there be enough flexibility in British governing circles to meet it? The new forces in colonial life met new forces emanating from Great Britain; the vast changes that lay ahead came only in part from the colonies, and if they had not themselves required a renovation of their institutions, one would soon have been forced upon them by their mother country. For the Great Britain of the 1840s was in full tide of the industrial revolution, at the top of its form in power, energy, self-confidence and inventive skill, and entertained a growing impatience with systems of government and economics that did not stand the test of practical common sense. The new men who had been making themselves felt since the reform of Parliament, represented not the landed, financial, and shipping interests but the new power industries that were leading the world in all the processes of production; they had no intention of allowing themselves to be hampered by the deadwood of a previous era, dependent colonies included. […] England had decided for free trade. This meant not only the weakening of the great vested domestic interest of “the land” but also the possible destruction of the two leading “colonial” interests, timber

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and sugar. In reality these were both just as English as was “the land,” for the timber merchants in Liverpool or Quebec, the sugar importers of Great Britain, and the ship owners whose vessels met with no foreign rivalry in these trades, were metropolitan rather than colonial. The only genuine colonials concerned in the trade monopolies were sugar planters and the lumbermen of British North America, who were actually engaged in felling and floating timber from forest to ship. The traditional English colonial system had been forged by Englishmen for Englishmen, and now it was Englishmen who had ended it. Once mercantilism and the concept of the closed commercial empire collapsed in Great Britain, it could no longer be maintained for the colonies. As a consequence of Peel’s budget of 1846, British America was in that year given a large measure of control over local tariffs, and colonial autonomy in trade began. The whole weight of British feeling in the 1840s was that every pot should stand on its own bottom. This was a point of view that must be thoroughly grasped by those who would understand the way in which a dependent empire changed into a self-governing empire, for it goes a long way towards explaining the ease of the transition. Once Great Britain adopted free trade, she could not logically deny trade and tariff freedom to her colonies, and once freedom of action had been accorded in the sphere of trade, political freedom could not long be withheld: freedom was indivisible. The economic and political aspects of the colonial relationship were two parts of the complex which, in terms of colonial autonomy, receives the name Responsible Government. The logic of the reform movement as it affected the colonial system was not seen as clearly at the time as it can be now: every forward step was bitterly fought, especially in British North America, and when the process was completed, the usual minority united in agreeing that the sun of England’s glory was set and her Empire broken up. It is hard today to grasp how completely the two conceptions of Empire and trade were at that time bound up together. If England and the colonies did not form one trading unity, then, it seemed to follow there could be no political connection. Both in England and the colonies there, were comparatively few who grasped the deep realities of blood, and in England there was virtually no one who had the same sentimental attitude towards the colonies, which might be considered parts of a greater England overseas, as had the  average colonist towards the mother-country. To the English,

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colonies were markets, customers, empty lands, or at best strategic areas to be controlled by sea-power; imagination as to their future was lacking. The bonds of Empire down until the twentieth century were knit up almost exclusively by the colonists. To English Tories, the outer Empire meant dominance and a chance of jobs for younger sons, to English Whigs and Radicals it meant trade, and if trade could be done with other countries to better advantage, the Empire became a nuisance. There was only the occasional Durham or Wakefield. Everything considered, colonists having repudiated the Tory political view of Empire and the metropolis having repudiated the traditional mercantile conception, it was not surprising that the home government was willing to concede both fiscal and political autonomy. 2 . T he R i ddl e of C ol oni a l Fr e e d o m an d Imper ia l   C ont r ol The years of experiment from Sydenham to Elgin (1839–49) have been the subject of more writing than has any other period except that of the Conquest. The outcome of the experiment turned on the personalities of relatively few people, on two Secretaries of State for the Colonies, five Governors, and three colonial statesmen. The Colonial Secretaries were Lord Stanley (1841–45), a Conservative, and Lord Grey (1846–52), a Whig. The governors of Canada were Sir Charles Bagot (1842–43), a moderate Conservative, Sir Charles Metcalfe (1843–45), a High Tory by nature though not a party man, and the Earl of Elgin (1847–54), a moderate Conservative. Two lieutenant governors of Nova Scotia complete this group of five: Sir Colin Campbell (1834–40), and Viscount Falkland (1840–46). The three colonial statesmen were Robert Baldwin from Upper Canada, the classical proponent of the idea of Responsible Government; Louis H. LaFontaine from Lower Canada, the natural successor to Papineau as French-Canadian leader; and Joseph Howe from Nova Scotia. Lord Stanley, Peel’s Colonial Secretary, was a Tory of less than ten years standing. He was not illiberal but his advice to Sir Charles Bagot, Sydenham’s successor, to stick to the Family Compact men as the real Loyalists, the only dependable element, showed that he did not understand the local situation, for his advice if taken might have destroyed the colonial relationship. His Whig successor, Lord Grey (son of the former Prime Minister), as a complete believer in free trade and almost a doctrinaire individualist, was in some respects the

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embodiment of the spirit of the times. Consonant with such doctrines was his conviction – which time was to prove correct and which he shared with Lord Elgin, than whom no governor contributed more to the solving of the Canadian riddle – that colonial autonomy, far from loosening the bonds of Empire, was the one thing that would make them hold. He went further and saw in colonial federation the building of a colonial nationalism which would be the antidote to centrifugal forces. He was thus a true liberal, sharing with great statesmen such as the later Gladstone the secret of the Empire vouchsafed to few political opponents. The Colonial Office had usually been regarded as well down the list of desirability in Cabinet appointments and had rarely before attracted men of prominence or ability; this had been no small factor in colonial misgovernment. Grey, while not a statesman of the first rank was conscientious and above the average of competence. His five-year tenure of office was also much longer than had been usual for colonial secretaries. He possessed another great advantage in his close personal relations with Lord Elgin, the Governor during the critical period of transition to Responsible Government. Of the strategic governors, three – Bagot, Metcalfe and Elgin – served in Canada: two – Campbell and Falkland – in Nova Scotia. These were the only two colonies in which growing pains were severe enough to cause crisis. To Bagot goes the credit for discerning the simple major premise of Canadian life, the fact that stares one in the face but to which so many of English speech have been blind: “You cannot govern Canada without the French,” to use his own words. Since the rebellion the French had been sulking. In it most of their responsible leaders had committed themselves to a greater or less degree (Cartier had been “out” in 1837 and LaFontaine, having been in close sympathy down to the last, had found it prudent to leave the province until the amnesty proclamation was issued), and they all felt that the whole Durham-Sydenham programme had as its main objective their subordination and assimilation. They had hung back, refusing to work with such genuinely good measures as Sydenham’s District Councils Act, which provided the system of municipal government that the Colonies had so sorely lacked; and appended to every one of their own who showed any signs of cooperation the epithet of ultimate infamy – un vendu. Bagot himself did some hard bargaining before he surrendered to the two men, Louis H. LaFontaine and Robert Baldwin, who could command a majority

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in the Assembly, but his acceptance of the inevitable was an act of  statesmanship whose importance grows with the years. When LaFontaine took office on his own terms, that constituted co-­ operation in government which could not be interpreted as selling out. It also was a testimony that the days of Château Clique had gone forever: LaFontaine, even if he had wished it, was not to have the opportunity of becoming a Papineau. Office imposed responsibility, and there could be no more declamation against an arbitrary and over-riding power. Yet how much responsibility did office impose? That was the question. Both Baldwin and LaFontaine regarded their being in the executive as tantamount to the accomplishment of self-government, and there began to be heard talk of “ministers.” It would, however, be wrong to regard the advisers of Sir Charles Bagot as constituting a ministry. They worked peacefully with him, Bagot invariably taking their advice, they maintained a majority in the Assembly, and there was a large measure of collective responsibility among them; but Bagot was still governor, and many issues could have arisen that might have required him to refuse their advice and seek other counsellors. The embarrassment of such a situation he, like Sydenham before him, escaped by death. Probably a tussle between governor and advisers had to come anyway, but no one more likely to precipitate it could have been chosen than Bagot’s successor, Sir Charles Metcalfe. His previous experience had been in India and Jamaica, both of which posts called out whatever instincts of dominance a man had about him, and he came to Canada as he had gone to Jamaica, a sahib who took it for granted that the job of the governor was to govern. To come up against a Parliamentary system in which members of a conquered race, who a few years previously had been in arms against their sovereign, were playing a leading part and actually making the decisions in the name of the Crown, must have been a severe shock to him. What is more, the people whose minds naturally marched with his, the “natural governing class,” the Tories, were impotent. In those days, principles were not quite as clear as they afterwards became; they tended to be obscured by the details of the day. What was painfully apparent to the Tories was that they no longer enjoyed the sweets of office. Appointments were going to their enemies, or as they would have said, to rebels. Nothing could have gored more deeply a group of men who had been accustomed to regard the good things of the

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province as theirs by a kind of divine right; here was the ultimate bitterness of revolution: to be on the outside and see your enemies on the inside. Metcalfe soon became aware of the situation; he heard plenty of tales of woe from men more to his taste than the persons he found on his Executive Council. When these latter made it clear to him that even he, the Governor, could not be allowed to change it, his relations with them became difficult, and when a test case arose, a trifling appointment which Metcalfe made without consulting his council, Baldwin and LaFontaine resigned. Metcalfe tried in vain to form another administration, and for over a year the province was without one. The Governor felt that in driving the Reformers out of office he was saving the colony for the Crown. It was ridiculous that a set of men, lately “rebels,” should suggest that the Queen’s representative should not govern the Queen’s colony except insofar as he was willing to demean himself by subordinating himself to his own subordinates; and it was shameful that the “loyal” people should be debarred from all recognition on the part of their sovereign, that rogues should flourish and honest folk droop because a given group of men was able to rally a majority of a popular assembly to their side. Such an attitude showed how blind he was to the realities of colonial life. He could not see, nor would he have admitted, the principle that the Assembly was the only device for discovering the will of the people and that in a white colony whose people were heirs of the English tradition (whatever might be the case in India and Jamaica), the only possible basis for government was the will of the people. He therefore fought in Canada that same losing battle which had been fought by the forces that had brought on the rebellions, or in England by the Crown in the seventeenth century, or in Ireland by the English government down to 1922. In fact, he fought the battle of “colonialism” as against “anti-colonialism,” a fight the last stages of which the modern world is still witnessing. Yet as a man of great sincerity and as the Queen’s representative, he wielded much power, and when the inevitable election was forced on him, he was by no means without support. Like Sir Francis Bond Head before him, he seems to have been sure that “the people,” as distinct from their representatives, were “loyal,” and he only awaited the opportunity to show that the whole sad business of pretended ministerial government had been a mistake. Tories rallied to him, of

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course. But the determining personage was the same man who had swung Sir Francis’s election of 1836 for him, Egerton Ryerson. Ryerson never seems to have penetrated the mysteries of Responsible Government, an when this second crisis arose, his primary instincts of Loyalism and conservatism came to the fore as they had in the first instance, and he entered the lists on the side of things as they were. His support brought a large Methodist vote with it; the result was that Baldwin and LaFontaine failed to secure a majority. But the necessity of the election had itself been sufficient acknowledgement of the principle of government by the consent of the governed, and the fact that it was won by the same flag-waving devices as in 1836 did not in the least mean that the methods of governing India were going, in the future, to be applied to Canada: in his victory, the governor was defeated. For him personally, the triumph was short-lived, for he too, like both his predecessors, was fated to die after a short term in office, leaving the question of sovereignty in Canada still unsolved. Lord Elgin who succeeded him, was Lord Durham’s son-in-law; his wife was a niece of Lord Grey, the Colonial Secretary. This snug little family circle would be sure to produce a pooling of knowledge and opinion, of which people of much more than average ability and experience would make good use. Like his father-in-law, Elgin had a first-class brain, and the results were obvious in his governorship. The Grey-Durham-Elgin family connection, with its contribution of as much ability to colonial affairs as all the rest of governors and colonial secretaries put together, saved the British connection. It did not take Elgin long after his arrival to size up the situation in Canada, and when the next election had been held (1848), with its anticipated return of a Reform majority for Baldwin-LaFontaine, Metcalfe’s tour de force was quietly ended. The old councillors, after a futile attempt to induce the French to work with them, stepped down on proof being forthcoming that they could not command a majority, and Baldwin and LaFontaine took over. Correspondence between Elgin and Grey was constant and intimate. When Elgin said he was determined to work with his councillors and give them his confidence as long as they could command the confidence of the Legislature, he was using the same language as Grey in his wellknown despatches to Lieutenant-Governor Harvey of Nova Scotia by which he virtually ordered the setting up of ministerial governments. After Baldwin and LaFontaine had taken office, as possessing the

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confidence of the Assembly, the end of the evolution had been reached, and Responsible Government had come into existence. It would have been impossible to turn back the hands of the clock to the old type of Crown colony administration without provoking further outbreaks, for if the period from 1791 on had made anything clear, it was that the evolution in colonial politics could not stop short of self-government. Although Elgin understood this readily enough and knew that self-government was the only alternative to another American Revolution, there were many people in the colonies themselves who did not. Their actions were, within a year or two, to provide the occasion for a rigorous test of the new system, in the form of the Rebellion Losses Bill, a test severe enough to prove its affirmation. The other two governors who need consideration – Sir Colin Campbell and Lord Falkland, both in Nova Scotia – are not persons of prime importance. Campbell was of the old military type, a man who found it hard to understand that anyone except “the proper people” should conduct public affairs. But he had the misfortune to come up against a man of much greater capacity than himself, Joseph Howe, then a member of the legislature, and got the worst of it. Howe’s arguments, addressed both to the people and to the Colonial Office, secured Campbell’s recall (1840) as an official who did not enjoy the confidence of his people. His successor, Lord ­Falkland, was also ill-advised enough to enter into a personal controversy with Howe, who was again editing his old paper, the Novascotian, and who used his advantage rather shamelessly to hold the governor up to ridicule. The point at issue was whether a council should be formed consisting of men of different political leanings, who did not enjoy each other’s confidence, even if they enjoyed the governor’s. Howe naturally had to oppose such a suggestion, for the essence of Responsible Government was the corporate nature of the Council (or Cabinet, as we would say today) in its dependence upon the confidence of the Assembly. A non-corporate Council simply meant heads of departments dependent upon the governor (which had been the system of government of George III before the loss of the American colonies, or the system of Lord Sydenham in Canada). Falkland became the second scalp in Howe’s belt, and his successor, Sir John Harvey, was instructed by the new Colonial Secretary, Earl Grey, in the despatches mentioned above, to accept the collective advice of his councillors, which made them his

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responsible advisers, his ministry. Nova Scotia thus had the honour of leading Canada by a few months in the establishment of a clearcut Responsible Government. It is rather astonishing how few men in the colonies or out of them actually seemed to divine the nature of the change that would be necessary if the colonies were to obtain government which their ­people would accept. Among the colonists neither Papineau nor Mackenzie did so. Nor did Egerton Ryerson. If any Family Compact Tories did so, they could only see in the device a sure road into political oblivion. Moderates like J.W. Johnstone in Nova Scotia or William Hamilton Merritt in Canada may have understood intellectually, but they did not evince their conviction of the overriding importance of the device. It was left to Baldwin, LaFontaine, and Howe to fight the cause through and it is proper that with their names this greatest of peaceful revolutions should be principally associated. Robert Baldwin has often been called “the man of one idea” but his one idea was the one thing needful. He had stuck to it through thick and thin since the late 1820s when his father had worked it out and he had embraced it. He had been tempted neither by Mackenzie left-extremism nor by the fleshpots that he could easily have enjoyed through Tory relations and friends. He·had given Sir Francis Bond Head’s offer an honest trial in 1836, and in accordance with his conception of the correct procedure, had resigned when: that governor showed he had no intention of committing himself to his councillors. In the years of rebellion, although loose charges of being associated with the rebels were hurled at him, he had kept squarely in the middle of the road. He had gone through with Sydenham practically the same experience as he had with Bond Head. He had convinced Bagot that the only road to stable government was through working with the majority in the Assembly that he and LaFontaine possessed, and had thus constituted under that governor something close to a responsible ministry. He had fought against Metcalfe’s reactionary position and had followed his principles in working with the governor as long as he had his confidence, then retiring. Finally, coming back to office again after the Reform victory in the elections of 1847–48; he had found himself in agreement with Elgin on the content of the term Responsible Government and had been a leading spirit in its accomplishment. If the will of the people, as represented by a majority in the Assembly, led to Rebellion Losses bills or Secret Societies bills, he followed the will of the people. Throughout it all,

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he retained intact his Anglicanism, his colonial aristocratic attitude and his attachment to the Crown. No such middle-of-the-roader could be overly popular: he was too cold, too correct, too consistent, and like Aristides, too just, for popularity. But it is to him more than to any other one man, Durham and Howe not excepted, that Canada owes self-government in the form of “Responsible Government.” Upon Louis Hippolyte LaFontaine had descended the mantle of Papineau. But LaFontaine was far from being a Papineau. Like the other generous-minded, freedom-loving young men of his race, he had been fully in sympathy with Papineau, but he was not an ideologue as Papineau tended to be, nor did he feel that his race was, suffering intolerable wrongs or that no cost could be too great to match the setting up of a French republic in North America. When he realized that the rebellion had failed, he had no difficulty in having recourse to normal Reform constitutionalism, especially ­ when Bagot showed his disposition to work with the French. Once LaFontaine had accepted office under the Crown, he had committed his people, through his followers in the Assembly, to constitutionalism. Lower Canada, thanks to him, did not become a precedent for Ireland. No aspirations towards the widest possible future for the race were to be abandoned, but in future these were to be realized at the polls and through debate, not through gunpowder. If trouble were again to arise, it would have to be on issues other than the form of government. This was LaFontaine’s contribution: his good sense in accepting something repugnant to French mentality, a compromise, and in putting it on a working basis. Lower Canada was to remain French; but in doing so, it was putting itself in the harness of English institutions. The most attractive figure of the period, the most vital personality, not excluding Durham, was Joseph Howe. He was a man, in every sense of the term. The son of a Loyalist, but outside the sacred circle of the well-born Halifax Anglicans who disposed of Nova Scotia’s destinies, he did not see why being a colonist and a Loyalist should deprive him of those rights of self-government that he would have possessed as an Englishman. In him, and in his encounters with officialdom in his province, the old eighteenth-century colonial contests were relived. He was not long in grasping Baldwin’s idea of Responsible Government, and he became its most effective exponent in the rebellion period. It was, he said in his open letters to Lord John Russell, absurd to think that a citizen of Liverpool was any

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less an Englishman because he had self-government than he would have been if governed direct from Westminster. The statement revealed both Howe’s strength and weakness. He was determined to have all his rights as an Englishman, a member of an Imperial organization, but these extended no further than local self-government. Self-government, in his version, had nothing whatsoever to do with independence. That was also true for Baldwin, but the larger scale of the Canadas was to ensure that sooner or later all the other aspects of self-government would have to be brought under local control, too. Nova Scotia, as a small community not likely to expand much, could safely be trusted, as was soon discovered, with local self-­ government, because it was unlikely that it would ever wish to have anything beyond, provincial status. Canada was more of a question, because its politics were turbulent and there were many problems whose solutions might carry the province into unforeseen decisions. If it had not been for the Canadas, it may well be that ministerial government would have been accorded earlier than it was, for there were no rebels in the Maritimes; and the Imperial government did not evince any desire to make them safe for the small cliques that controlled them. After the open letters to Russell, Howe’s contributions were somewhat of an anti-climax. They consisted mainly in his personal duels with Campbell and Falkland, already alluded to, and in providing in himself; a centre for a party to rally about: the Reformers roughly corresponded to the group of the same name in Upper Canada, their opponents being known as Tories and, later, Conservatives. Once, however, Responsible Government was secured, the names hardly signified enough differences of principle to give a secure framework for the new device. A period that saw the destruction of the Old Colonial System, a legal and political edifice over two centuries old, buttressed by innumerable statutes, treasured as a means for providing the basis of sea-power, and defended by great vested interests, and a radically new experiment in empire, the grant to the senior overseas provinces of local self-government – such a decade deserves to be called revolutionary. The second empire had sprung up on the ruins of the first, but it had been a new empire mainly in a physical sense as ­consisting of new territory, for the spirit of the old empire had lived on, and a new empire in a real sense was not born until the 1840s. The empire consisting of a metropolitan centre and white colonies

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attached by ties of sentiment rather than dominance, in which the centre was prepared to concede autonomy as a father concedes it to a son coming to manhood, that empire – the third empire, it might be called – did not come into existence until the 1840s had destroyed its predecessors. By the combined experiences of Great Britain and her colonies, concentrated in the personalities of a relatively small number of men, and by “the whiff of grapeshot” of 1837, a secret had been stumbled on that was to give to the new political edifice relative immortality. Like all political movements of importance in Canada, before and since, its nature was essentially that of a compromise. Impatient Manchester men in England would have completed the English revolution from the British Empire by throwing the colonies overboard. Hard-crusted Tories would have insisted on dominance and forced them into real revolution. Colonial doctrinaires like Mackenzie and Papineau would have gone far beyond the mere remedy of abuses; reactionaries like Sir John Beverley Robinson (Chief Justice of Upper Canada), Metcalfe, Haliburton, and Uniacke would have stood on their privileges and had their hands forced. It was the middle-of-the-road men, the compromisers, the idealistic  realists, the Baldwins, Durhams, Greys, Howes, Elgins, and LaFontaines, who saved the British Empire of the 1840s and gave it another century of life.

Not e   1 Excerpt from Arthur R.M. Lower, Colony to Nation: A History of Canada, (Toronto: McClelland & Stewart, 1977), 247–53, 261–73. Originally ­published by Longmans, Greens and Company, New York, 1946.

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The Union of the Canadas: A New Conquest? Denis Vaugeois 1

Th e U n i o n a n d t h e J u dgment of History Political annexation, in a modern, dynamic economy, inevitably leads to economic subordination. Political inferiority and economic inferiority lock together in a downward spiral. Culture, in the most general sense, which is closely tied to political and economic realities, is shaken to the point where, for the minority people, it is no longer possible to even speak about true cultural autonomy. M. Séguin

The openly avowed approach of all the unionists was, as it were, to “overrun and submerge the Canadian population.” Once applied, however, we now know that the measure was not as successful as expected. Union came too late to allow a form of assimilation “that would not sacrifice the wellbeing of the current generation,” one which, in other words, would rely simply on a high level of British immigration and the normal pressure of English influence, without the need to take direct action against the French Canadian group. In parallel with this unionist policy, another question had concerned all colonial subjects for many years: the question of ministerial responsibility. Almost immediately, as we know, the Canadians realized that the government structures of 1791 were imperfect, and they quickly demanded that the executive be answerable to the elected assembly.

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As early as 1809, Pierre Bédard adopted this position when he wrote in “Le Canadien”: what troubles would a country not face if its Ministers were not responsible for the wrongs committed in public affairs?” “Although those in power now say that ministers are responsible for everything, I am sure they will try to find some way out of it, that they will say we have no right to pursue them and make them accountable for their conduct. Later, the Ninety-Two Resolutions attacked the “vicious composition and the irresponsibility of the Executive Council.” In 1836, one of the reforms demanded was to “render the Executive Council directly responsible to the Representatives of the People, conformable to the principles and practice of the British constitution.” Morin then proclaimed that the system of responsible administration should be introduced into the colonial government. The “habitants” of Lower Canada had quickly grasped the importance of this measure, since, from the outset, the English minority had controlled both Councils, while the majority of the population could do no more than rely on an assembly with no real powers. In the Upper Canada, the “family compact” had controlled the entire administration for many years. However, the Reformists, under the guidance of Robert Baldwin, eventually managed to form  a strong opposition that tenaciously demanded ministerial responsibility. Petition after petition was sent to London, where there was little enthusiasm for acting on any such ideas. Any number of reasons could explain the hesitation of the imperial parliament, but one reason in particular was important in the case of Lower Canada: a majority of the population was French. Was it logical to recognize the principle in favour of this particular majority – could it be given the reins of power, thereby effectively opening up the way to independence? Neither London, nor the Anglo-Canadian “Tories,” could seriously entertain this idea. The latter were taking full advantage of the existing situation, and the privileges they enjoyed as a minority allowed them to “occupy the highest positions in the administration, to dominate the Executive and Legislative Councils, and to advise the representatives of the Crown.”

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In an article on the “prisons quarrel,” Jean-Pierre Wallot gave a clear description of the situation: Since 1791, the Canadians had held the key position in the Legislative Chamber. The Constitution, a monster of misunderstanding, could only provide hope that they would one day be emancipated. They believed in their emancipation, and ardently desired to obtain it. This aim was expressed in their increasingly insistent petitions for a fairer application of the new regime. They were irritated by the delay in cleaning up the “clique,” an action they hoped London would take. From a constitutional point of view, the Canadians were clearly in the right, which gave their demands a singular strength and embarrassed London. In his report, Durham recognized this himself. It is normal for a people to wish to become a nation, for an assembly to seek to govern, and for its members to obtain positions of influence. Some English merchants and civil servants also knew that, one day, the Legislative Chamber would enjoy ministerial responsibility. And for good reason: their natural aspirations were the same as those of the Canadians. But, under the self-­ government regime granted to the Canadians, the English, they cried, would be at the mercy of the vanquished of 1760, who could well ­paralyze the administration.” To illustrate this attitude, Wallot quotes extensively from observations made by Ryland around 1809. Ryland, as we have seen, was trying to find ways to ensure “an English influence in the inferior branch of the Provincial Legislature,” and as he aptly notes, a House of Assembly with a majority of Canadians would never “suffer a Bill to pass for the encouragement of English settlers.” Ministerial responsibility would necessarily favour the majority, and Ryland, as an Englishman, knew this. Wallot continues: The English preferred to wait, and even, for the time being, to resist self-government until they could obtain it for themselves. They would have preferred to join the United States rather than abandon Lower Canada to the Canadians. Why? For several ­reasons: because Quebec and Montréal were major

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trading centres and hubs for both transportation routes and English capital; because Lower Canada was expected to be the launching-site for any expansion to the West; because Canada, an immense but sparsely populated country, was liable to experience exponential growth thanks to new settlement that the Canadians, with no links to a home country, could not undertake; and last, because of the Conquest, because there could no longer be a Canadian nation, and because the dominant people had to lead the way and settle the country. Two armed enemies cannot face each other indefinitely without coming to blows. After taking up battle formation in 1805, the two racial groups in Lower Canada maintained an ongoing struggle, especially after 1807. The definitive showdown took place only in 1837, after shots were exchanged. Starting in 1790, but with a more lucid and coordinated approach after 1820, the English Canadians and senior civil servants understood and stated openly that only a Union could solve the problem and correct the situation. Uniting the two Canadas meant eliminating the threat posed by the Canadians by reducing them to a minority, and also meant creating an English majority in the St. Lawrence valley and allowing them to achieve self-­ government with no danger. At the same time, it meant strengthening Canada against the influence of a powerful neighbour, the United States. The crisis that began with the prisons quarrel could only end with the definitive subjection of the Canadians. After that, they would no longer constitute a danger for English Canada – at most they would remain a source of administrative worry and trouble. Seen from this perspective, the granting of ministerial ­responsibility in 1848 remains the joint achievement of Baldwin and LaFontaine, but can no longer be seen as serving equally the two ethnic groups they represented. Baldwin was probably sincere, as were many others, but the fact remains that Canada only completed the major step in its emancipation as a colony after English-speakers became a majority. Gradually ceasing to represent the British Crown, the Canadian Government could become the representative of the people (i.e., of  the majority) and keep the country within the extended family of English nations.

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Unable to take advantage of responsible government at the national level, the French-Canadian people would remain a “governed people,” constantly demanding and “electorally” obtaining concessions. As Guy Frégault writes, “French Canada was now forbidden from becoming a nation; it had to content itself with nothing more than survival as a province – in other words subordinated, and extremely limited in its options.” After removing its right to organize an authentically FrenchCanadian way of life by this permanent substitution of political power, it was given a “reason to survive” as a distinct group by creating the dual myth of a bi-cultural Canada and Canadian unity. Historians helped obscure reality, thanks to their obsession with the details of the fight to obtain responsible government. They gladly outlined the joint efforts of the reformers of both national camps, seeing them as irrevocable proof that the “deep division” noted by Durham did not exist. Next, the confederative pact officially corrected the “minor” injustices of the Act of Union and created an impression that the two nationalities were given equal consideration. The emergence of a provincial state led French Canadians, who formed a large majority in Quebec, to believe themselves once again masters in their own house. It took them several decades to begin to see the actual limits of their situation. Today, there is a tendency to see the possibilities open to the province of Quebec in more realistic terms. The courses given by Maurice Séguin at the University of Montreal have had an enormous influence, as have the writings of Guy Frégault and Michel Brunet. As the latter noted in the first issue of the French Maclean’s magazine, the “messianic dreams of previous generations have given way to more modest objectives that have the key advantage of being achievable.” He also points out that “to begin with, the Quebec State was not French-Canadian. Or barely! The French-Canadian majority in the Legislative Assembly and the government had less power than the Anglo-Canadian bourgeoisie, represented by the ‘Bank of Montreal’ which kept a careful watch over the province’s finances. It is also impossible to ignore the omnipotent presence of the government in  Ottawa, defender of the collective interests of the Canadian majority.” It is inevitable that Canada, as a so-called bi-ethnic country, should bear the mark of its majority in both its foreign relations and its

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domestic organization, in other words in its diplomatic corps and its civil service. However, what is more serious is that, in the essential areas of its political and economic life, the French Canadian community is deprived of a distinct and autonomous ability to act of its own accord. A new and strongly centralizing form of federalism has marked developments in recent years, as pointed out in the report by the Tremblay Commission: At the crossroads where it is now situated, the Province of Quebec still maintains its original choice; it wants neither unitarism or separatism, but it declares itself still faithfully attached to federalism. It refuses, however, to be satisfied with a surface ­federalism, which is only for show, like a theatre decoration, even if it is presented to it under the seductive name of the new Canadian federalism. Instinctively, because its vital instincts are at stake, it knows how to distinguish between a policy of imperialist inspiration which tends to reduce it to the status of a Crown colony, and of a colony subsidized, dominated and controlled by the mother country, which in the present instance would be the central government, and a truly federalist policy which respects its liberty and dignity and appeals to its co-operation in accomplishing tasks of joint interest. And when it this makes a claim for the sincere practice of federalism, it does to in the belief that it is thereby rendering service to the whole of Canada, because it has long known – nor is it the only one to have so discovered – that vigorous provincial institutions are indispensable to the political stability and maintenance of democracy in Canada. Whatever form of federalism is practised, the French-Canadian people is not itself independent, although annexed to an independent people. Led, governed or directed by a “foreigner”, the FrenchCanadian group cannot move towards maturity or self-­ affirmation as a group. A government that is not its own can ask it to reflect on its problems and find solutions. Falling into this trap would be to renounce any possibility of progress, and ultimately to renounce its own personality; it would be to remain consciously at an infantile level, to refuse to ACT

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A U T O NOM OUSL Y , in effect to renounce its existence. Survival in an oxygen tent remains the only possibility. Is French Canada condemned to eke out a mediocre existence? A historian or sociologist who looks only at general norms (that some people see as laws) would be tempted to say yes – but neither one of them can predict the future. When dealing with men, the inner man must be taken into account! The French-Canadian people is still driven by a “collective will to live,” expressed sometimes through independence movements, sometimes through autonomist campaigns or efforts to reestablish the French language. This collective striving towards emancipation is constant, although only too often misdirected. The Canadian federal context can provide no satisfaction. Total liberation is highly unlikely, we are told, just as assimilation is not imminent; while the collective will to live remains … Translated by Benjamin Waterhouse

Not e   1 Excerpt from Denis Vaugeois. L’union des deux Canadas: nouvelle c­ onquête? (Trois-Rivières: Éditions du Bien public, 1962), 213–21. This text was originally written as a requirement for the completion of a teaching degree with an option in history.

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The Pattern of Union, 1840–1841 J.M.S. Careless 1

On February 10, 1841, the union of the Canadas uneasily began. The crash of cannon in Toronto and Montreal announced at noon that the separate provinces of Upper and Lower Canada were no more. Henceforth, English-speaking Upper Canadians and predominantly French-speaking Lower Canadians would dwell under one constitution in a single Province of Canada. Within the old limits of Lower Canada a French ethnic majority, an English minority, had lived constrainedly together for half a century already; but now all the English colonists in Great Britain’s two most populous American possessions would be combined with the French Canadians in one political unit. Two peoples of diverse origins, cultures, and national aspirations would have to reach a new accommodation, in the sphere of politics and government at least. The fundamental Canadian problem of duality assumed wholly different proportions as this design for the union of the Canadas, precursor of the much broader British North American union of 1867, came formally and soberly into effect. It was a day of mixed auspices. English Canadians might loyally, hopefully, observe that this was the young Queen Victoria’s first wedding anniversary, and the christening-day of her first child as well. French Canadians would be more likely to recall, with painful clarity, that just three years earlier on February 10, 1838, an act of the imperial British parliament had suspended the constitution of Lower Canada, in consequence of the Rebellion of 1837 in the

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province. Since then they had been under the rule of a nominated Special Council and helpless to prevent the effecting of a union which was designed to submerge and ultimately assimilate them as a people, thus disposing of the French-Canadian “problem” in British North America forever. The Special Council met in Montreal, commercial metropolis of  the Canadas, under the eye of the assiduous governor, Lord Sydenham, who made his residence there in preference to the old Lower Canadian capital city of Quebec. It was in Montreal, therefore, that the ceremonies to inaugurate union in Lower Canada were held. Proclamations in French and English had been posted through the snowy streets to herald the day of union – and had all been ripped down overnight. None the less, at one o’clock in the afternoon of February 10, the judges, the commander of the forces, the mayor and corporation, the lesser civil and military officials, gathered in scarlet, gold and black at the eighteenth-century Château de Ramezay. There they watched as Charles Poulett Thomson, Baron Sydenham of Sydenham in Kent and Toronto in Canada, resplendent in full uniform, was sworn in as first governor-general of the United Province. He was a slight, handsome figure in his early forties, cheerfully vain and cocksure but astute and ever-resourceful, whose particular triumph it was to have carried the project of union forward to this moment of completion. A crowd outside the entrance, entertained by the bands of the Royal Welch Fusiliers and the 85th Light Infantry, heard Sydenham’s proclamation read. It made an eloquent, earnest appeal to the loyalty and good feelings of Lower Canadians “of whatever origin” to make the union work: “In your hands rests now your fate.” Yet when some three hundred citizens came to pay their respects at the Governor’s grand levee afterward, less than fifty French Canadians were among them; and of these one-third were officials, and another third clergy. True, the powerful commercial class of restless Montreal, the leading element in Lower Canada’s English-speaking minority, were warmly enthusiastic over the union. It would finally put right the mistake made in 1791, when two separate Canadas had been created out of the old Province of Quebec, and would free them from the weight of a hostile French majority within Lower Canada. It would remove interprovincial barriers from the rich trade which the merchants of Montreal controlled up the great inland waterway of the

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St Lawrence River, and make a political entity out of what was already a geographic and commercial unit. And it would surely enable work to proceed on canals to conquer natural barriers in the water route, now that the French Canadians who had opposed heavy expenditure on public works could be outvoted in the union legislature. Small wonder that the vigorous commercial tory organ, the Montreal Gazette, hailed “a new era in the history of this great Province,” which “every loyal subject in C A NA DA will have this day celebrated with that hearty joy and cordial gratulation so peculiar to BRITO N S .” But down-river in Quebec, still the heart of French Canada, the satirical weekly Le Fantasque noted the “singular coincidence” of the union’s being initiated on a Wednesday – mercredi. For, as all should know, mercredi signified the day of Mercury, the god of merchants – and thieves. And the reform oracle, Le Canadien, for years the redoubtable champion of French rights, scorned Sydenham’s appeal for unity as an empty pretence, when nothing had been done to ease the jealousies and animosities between French and English. “Le jeu qu’on a fait dans le Bas-Canada pendant un demi siècle, on va le recommencer sur une plus grande échelle dans les deux Canadas Unis,” it darkly predicted. Notably, too, a young teller of the Quebec Bank, François-Xavier Garneau, put aside the major history of the French-Canadian people he had begun the year before, in order to produce for Le Canadien a long and fervent remonstrance against the coming obliteration of the French language and the denial of the genius of France. There could be no doubt that union was a major measure of British colonial policy aimed largely against the French. Yet the intentions behind it had not been merely negative or reactionary. They had originated with the late Lord Durham, that imperial emissary of boldly advanced views who had been sent from England to inquire into the conditions that had induced armed rebellion in both Canadas in 1837. After five bustling months spent in the country as governor-in-chief and lord high commissioner in 1838, he had set down a host of recommended changes in his famed Report on the Affairs of British North America, issued in 1839, the year before his early death. And something of Durham’s brisk reforming spirit had stirred the aging whig government of Lord Melbourne, faced as it was with the grave embarrassment of colonial disorders in the free and improving British nineteenth century.

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The Canadian rebellions themselves had been small, localized, and soon put down. Yet in Lower Canada, at least, there had been hard skirmishes and sharp suppression by British forces, and considerable French-Canadian sympathy manifested for the rebel champions of popular rights, Louis Joseph Papineau and his fellow patriote radicals. Here, in consequence, rebellion’s aftermath was acrid with French-English rancour and suspicion. It was scarcely surprising that Durham, centring his attention on this more populous and deeply troubled province, had concluded that the greatest source of Canadian ills was the warring of “two nations,” French and English, within one body politic. Hence he had proposed the union of Upper and Lower Canada, to turn the French into a minority in a predominantly English-speaking colony. Then, assuredly, they would abandon their deluded efforts to preserve a backward little French enclave in a vast progressive British empire, and gradually of their own volition embrace the benefits of assimilation. One nation would disappear within the other, and the strain and conflict of duality be gone. So great was a nineteenth-century British liberal’s faith in the superiority of English-speaking civilization, with its parliamentary constitution, steam engine, and world-wide industrial leadership. Of course, to accompany union Durham had urged responsible government, advocated by reformers on both sides of the Atlantic, whereby a colony’s government would be held responsible to its elected assembly in the same way that the British cabinet was held responsible to parliament. The extension of this British practice to colonies would break the power of tory oligarchies firmly rooted in the appointed executive and legislative councils beyond the assembly’s control-power that had exasperated radical reformers in both Canadas to the point of open revolt. And so it would treat the other great ill that Durham had perceived in British America, the conflict between representative popular institutions and local officials not subject to their will. “The Crown,” asserted his Report, “must … submit to the necessary consequences of representative institutions; and if it has to carry on the Government in unison with a representative body, it must consent to carry it on by means of those in whom that representative body has confidence.” The Melbourne ministry, however, had dismissed the proposal of responsible government as quite unsuitable for colonies, though they did affirm that much might be done in practice to improve relations between

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government and people in Canada. And above all, they had taken up the idea of union. The Union Bill they had formulated provided equal representation for the two Canadas within one legislature, even though the upper province then had only some 450,000 inhabitants to 650,000 in Lower Canada. Durham himself had merely envisaged representing the population of the union as a whole, without any such two-part division. He had counted on the combined numbers of the English Lower Canadians and the Upper Canadians to produce a general English-speaking preponderance, which would steadily grow as British immigration continued to fill in the sparsely settled districts of Upper Canada. But the Melbourne government wanted to be sure of English ascendancy from the start of union. This could be established beyond question by giving half the seats in the new legislature to Upper Canada, since the Lower Canadian English element would certainly hold some of the seats in the other half, leaving the French Canadians securely in the minority. In effect, Upper Canada would be over-represented to ensure the maintenance of British rule. To promote this new imperial scheme the strongest man in the whig cabinet, Lord John Russell, had moved to the post of Colonial Secretary. And another able cabinet member had left the presidency of the Board of Trade to govern the Canadas and prepare the way for union. This was Charles Poulett Thomson, member for Manchester, a highly practical liberal business man, thoroughly skilled in the arts of political management, a compound of calculation, driving ambition and buoyant energy. He took up his task in Canada in October, 1839, and received his peerage in August, 1840, as a mark of his success in negotiating acceptance of the union plan by Upper Canada and at least providing nominal approval for it in Lower Canada through the Special Council. In view of these achievements, the Act of Union was put through the British parliament in the summer of 1840, to take effect in Canada by proclamation the following year. This Act, however, would have consequences quite unlooked-for by its designers. The Canadian union would be hide-bound by its basic principle of equal representation. The differences between the two old provinces would only be perpetuated by the division of the legislature into Upper and Lower Canadian halves. Far from being made a unitary state, Canada would become a quasi-federal union of two distinct sections, functioning within a single legislative framework.

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But all this lay in the future. And in 1841, as union was proclaimed in Canada, the French Canadians were bound to regard it not only as having been designed to undermine their national identity, but as magnifying that wrong by decisively under-representing their own section of the country. Furthermore, while English Lower Canadian merchants might recognize (as Durham had) that union offered a far broader base for developing the great St Lawrence transport system, the French saw only that the heavy Upper Canadian debt, largely incurred to build canals, would be charged against the united province as a whole. And this, despite the fact that in Lower Canada the old French-controlled assembly had avoided a similar debt burden by blocking outlays sought by the English business interests. Finally – to cap the series of iniquities – English would become the sole official language of record in the legislature, even though French might still be used in parliamentary debate. Thus it was that French Canada’s antipathy to union varied only in degree; from a lethargy of dejection to fervent demands for repeal. But the strongest former partisans of French political opinion, Papineau and his radical associates, were in exile or scattered and disorganized, although Louis-Joseph’s cousin and close colleague, courtly old Denis-Benjamin Viger, a much-venerated figure who had first entered the assembly in 1808, was back in politics after having been released from prison without trial. The most prominent spokesman for the French Canadians at present seemed to be John Neilson, owner of the bilingual Quebec Gazette, a veteran constitutional reformer who, despite his British origin, had stoutly identified ­himself with the cause of Lower Canada’s autonomy and now was in the forefront of French agitation for repeal. Neilson, whitehaired embodiment of stalwart Scots integrity, had a record of unimpeachable loyalty and moderation during the recent times of violence. Yet he was also a convinced believer in the old Lower Canadian constitution of 1791, and the balanced freedom possible under it, if it were only properly applied. Thus he sought to repeal the Act of Union. Still, he characteristically wrote of it that, for the present, “intimately persuaded as we are that it is founded in error, we are nevertheless bound to submit.” Another leader was emerging in French Canada, however: Louis Hippolyte LaFontaine. He had sat in the Lower Canada assembly for Terrebonne since 1830, when, not twenty-three, he had been an earnest liberal disciple of the great prophet, Papineau. But LaFontaine,

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deliberate, dispassionate and even aloof by nature, took up his own judicious course. He had broken with the extremists at the outset of rebellion in 1837, insisting still on parliamentary action, and had carried Lower Canada’s case to England. He had briefly been imprisoned on his return; but that, indeed, had helped to distinguish him in French-Canadian eyes as one of the heroes of reform, as did his bold appeals to British authorities thereafter on behalf of the political prisoners. Since then he had steadily gained in stature, in the eclipse of older French-Canadian leaders. Now thirty-three, he was coolly reserved but compelling, well over middle height, solid and imposing. He had a remarkable resemblance to Napoleon, which he obviously cultivated in arranging his hair. It was said that during a visit he paid to Napoleon’s tomb in Paris, old soldiers of the Emperor crowded about this startling reincarnation of their master. LaFontaine’s manner, tight-lipped and imperious, was Napoleonic too. But his very air of aloof destiny inspired confidence at a dark moment for French Canada, and his shrewd political realism gave good reason for it. While deploring the union, he had come to recognize the futility of seeking outright repeal in the face of set British policy. He was prepared instead to try to function within it, to overcome its worst features through the cooperation of reform forces in both Canadas: he meant to use a British designed constitution on behalf of the French. To do so, he would have to mould a FrenchCanadian party in accord with his own purpose. He was a Montreal politician, firmly based there; but in the other chief, focus of French political strength, Quebec, he had as well a loyal and able associate, Augustin-Norbert Morin. Furthermore, Étienne Parent, editor of Quebec’s Le Canadien and a powerful intellectual influence in French Canada, was in essential agreement. Like LaFontaine, Parent could see the value of working positively with Upper Canada associates in the union, instead of reacting negatively in withdrawal, as would Neilson or the Viger-Papineau elements. There was, in fact, but one real hope for French Canadians: to find allies under the bleak new dispensation. As for the English Lower Canadians, who in time past had relied on the British oligarchy of officials centred at Quebec, they looked expectantly for continued tory-conservative rule under the new union – but English-speaking rule, in any case. The Moffatts and McGills, Montreal business leaders of the tory “British party” of Lower Canada, no longer need face an unshakable French majority

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in the assembly. With that in mind, their supporters might well hail the union day with thanksgiving, exclaiming also over the glowing prospects of new commercial progress. Moreover, as if in anticipation, St Lawrence trade had shot up during the previous season, as business recovered from the effects of prolonged world depression. The winter timber cut was promising, too. Quebec shippers expected some seven million feet of white pine to come down the river with the spring of 1841, along with five million of red pine, four million rock elm and four million white oak. Montreal forwarders were no less hopeful. But the French Canadian community, largely based on small-scale farming, was still feeling the consequence of a long series of ruinously bad crops in the last decade, of debt and rural unemployment. To these had been added the costs of abortive rebellion: the loss or destruction of property by troops in some localities, and the emotional wounds left by suppression and reprisal, the looting, the arrests and imprisonments. Above all, there was the exile of fiftyeight patriote prisoners to the Australian convict settlement of Van Diemen’s Land, which a small and clannish people devoted to their homes on the St Lawrence saw with special pain. And yet, if French Canadians, gloomy and disheartened as they were, greeted the union with bitter apprehension – “le mariage forcé,” a new symbol of subjection – there was hardening purpose within them still to survive. II In Upper Canada in 1841, the inauguration of union at Toronto, the  former provincial capital, also brought mixed feelings. Some welcomed it readily enough. In fact, a member of the Toronto Tandem Club (they raced two-horse sleighs on the thick harbour ice) produced a festal ode for the occasion: Hail February tenth! auspicious day, The harbinger of joys of great account. On you our Maiden Queen was given away, Our Royal Princess taken to the Font. The cannon’s roar proclaimed the Union Law At noon of you; and then, as I’m a sinner, Together the good folks at eve you draw By acclamation, to a civic dinner …

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Despite the official celebrations, however, the dominant mood in Toronto at union was one of grey February despondency. The city had just learned that an old Upper Canadian rival, Kingston, was to be the seat of government for the United Province, and Toronto’s hopes of becoming an even greater capital had come crashing down. The tory Toronto Patriot glumly prophesied that property depreciation would be “fearful.” Sir George Arthur, the last lieutenant-­ governor of Upper Canada, reported to his superior, Lord Sydenham at Montreal, that he had done his dutiful best to inaugurate the union properly in Toronto. There had been the royal salute at noon, Signior Blitz, the magician, at Government House in the evening and the public banquet in the Ontario House – through which the Governor had suffered with a sick headache from the noise of the band and thirteen bumper toasts. Yet Arthur admitted wryly, “I had no alternative but this course, or fall in with the prevailing melancholy mood of the City, and fire Minute Guns on the occasion.” Of course, Toronto was a special case, and gloom in the fallen Lake Ontario city was offset by jubilation to the east in Kingston where the frozen lake met the frozen St Lawrence. “We congratulate the citizens of Toronto,” said the Kingston Chronicle and Gazette in smug delight, “that the Public Records will now be placed in a situation equally secure from foreign invasion on the one hand and from internal insurrection on the other” – a sly reference to American raids on Toronto in 1813 and rebel attack there in 1837. Throughout Upper Canada there were mingled strains of doubt and hope; regrets for the loss of the western province’s separate existence, fears that it would be dominated by the more populous eastern community; yet also expectations of far greater economic and political opportunities to be found within United Canada. In the balance, the forces favourable to union were the stronger; for, unlike Lower Canada, Upper Canada had not had its constitution suspended in consequence of the rebellion of 1837, and the union project had been approved by its own provincial legislature. The limited, ill-organized rising of the Upper Canada radical under William Lyon Mackenzie had been readily quelled by the colonist themselves, while Mackenzie took refuge in the United States. Whatever their grievances, the mass of Upper Canadians had shown little desire for actual revolt. But the brief Mackenzie outburst had been followed by a series of raids from across the border during 1838,

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backed by American would-be liberators of Upper Canada. These wildly inept and futile attacks had practically identified the rebel cause with banditry and armed aggression from the United States, keenly remembered from the War of 1812. Radicalism, with its demand for elective institutions on the pattern of American democracy, was thoroughly discredited in Upper ­Canada. The bulk of reformers held aloof, while tory-conservative partisans of the governing oligarchy dominated a vociferously loyal assembly. Assuredly, there had been no cause to suspend the Upper ­Canadian constitution. Furthermore, the Melbourne ministry in England had been concerned to obtain proper colonial acceptance of its union plan, and this had been the first assignment for Sydenham (then Poulett Thomson) when he was sent in 1839 to govern Canada. In Lower Canada, of course, he had only had to pass it through an unrepresentative Special Council; but in Upper Canada he had had to win the support of the legislature. Indeed, Thomson had needed all his lively magnetism and deft persuasion, since the dominant western tories and conservatives were not eager to be yoked with alien, disaffected and presumably backward French. The safeguard of equal representation for Upper Canada had partly brought them around; but economic inducements had done much more for tory interests closely linked with the business community. Union promised that the problem of dividing customs revenues on the St Lawrence would be ended, that the crippling Upper Canadian debt would be taken over, and that the much wider financial resources of a united province could be used to complete the unfinished line of canals on Upper Canada’s vital St Lawrence outlet to the sea. Some of the staunchest tories, however, those most fully identified with the old provincial oligarchy, the Family Compact, had still been notably reluctant to see their established preserve of power absorbed in a larger unit. Thence Thomson had counterbalanced the Compact tories on the government side of the assembly by seeking support from the reform opposition (“truly Her Majesty’s,” he blithely noted). And he had gained that support; partly because of reforms to be expected from a vigorous governor eager to effect Lord Durham’s detailed recommendations for practical improvements; partly for another, more significant reason – because reformers looked for union to achieve what Durham had strongly coupled with it: responsible government.

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Apart from union itself, this was the largest single issue now before the Canadas, after two decades of friction between entrenched governing authorities and aspiring popular democracy that had finally issued in rebellion. Could a colony have its government brought under the control of its people and still remain a colony? Were the only possibilities subjugation to central imperial control or total separation, as the American Revolution had seemed to demonstrate? Besides Durham, other liberal imperialists in England had discerned a different possibility: colonial home rule based on the British principle of government responsibility to the representatives of the people. Such men were Charles Buller and Edward Gibbon Wakefield, who had shared in Durham’s mission to Canada and in drafting its findings. But the most perceptive advocate of responsible government was the Upper Canadian reformer Robert Baldwin, who saw it as the very means of maintaining the ties of empire through permitting a colony to manage its own concerns according to British practice and within the imperial system. Baldwin had put the concept to the Colonial Office in 1836 in a carefully reasoned memorandum. He and his father, Dr William Warren Baldwin, had discussed it with Durham during his stay in Canada, and Durham’s Report showed evidence of Robert Baldwin’s arguments. Certainly, the “responsible principle” was very much in the air after the Report of 1839, though more as a broadly desired objective than as a well-defined and well-understood technique of government. If the chief remaining British possessions in America could put into effect a principle which would allow the peaceful expansion of colonial liberty and democracy under the British parliamentary constitution, then the consequences not only for Canada, but also for the rest of Britain’s empire, would be profound indeed. The views of the imperial government, however, ran flatly to the contrary. However admirable in Britain, responsible government was logically impossible in a colony, even for the conduct of its internal affairs, all that was then proposed. Durham had held that if imperial concerns such as trade, defence, and constitutional structure were reserved for imperial control, domestic matters could be safely left to colonial hands. But the precise mind of Lord John Russell rejected any possibility of dividing the indivisible, sovereignty. In a dispatch which virtually coincided with Poulett Thomson’s arrival in Canada, the Colonial Secretary proved to his own complete satisfaction that a colonial governor could not both follow his instructions

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from England and act on the advice of councillors responsible to a  local assembly. If he did the former, “the parallel of constitutional  responsibility entirely fails”; if the latter, “he is no longer a subor­dinate officer, but an independent sovereign.” A colonial executive could not function under two commands. The sheer fact of empire required obedience to the central power in London, not to the ­dictates of local representatives. Nevertheless, apart from this allegedly indisputable principle, Russell and the British cabinet had every desire to rule Canada in practice with the support of a colonial majority. Hence the Secretary had earnestly instructed Thomson on becoming governor that “the importance of maintaining the utmost possible harmony between the policy of the legislature and of the executive government admits of no question.” The key word was “harmony,” noted repeatedly. The governor was to keep control firmly in his own hands, in order to shape and sustain an amicable concord between his executive and the representatives’ body. In this way, indeed, the inadmissible demand for responsible rule could be killed with kindness. This had remained Thomson’s consistent aim, even though he did inform the Upper Canada legislature that the country would henceforth be governed “in accordance with the well understood wishes and interests of the people.” Reformers might seize on that; but in Thomson’s own mind, the governor would do the understanding. He himself concluded that there were ample grounds for changes in Canadian government. Yet he deemed the ills complained of, and their remedies, essentially practical. In other words an efficiently run administration under his command, freed from old Compact incumbents and representing the main interests in the assembly, would be able to satisfy every real need and silence talk of the responsible principle. Reformers believed instead that practical changes away from old oligarchic rule would inevitably open a way to the responsible system. Holding opposite purposes, they and the Governor could go some distance together, each side assuming it could use the other. […] Since April 1839, therefore, Hincks had been in continual correspondence with the most significant French-Canadian figure in the lower province, LaFontaine, familiarizing him with Baldwin’s position, impressing on the influential French-Canadian liberal that the responsible principle would place government under popular

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control and thereby give the major element in Lower Canada an effective share in directing the union. “I feel certain,” Hincks wrote, “that if once we had responsible government as in England … we should in a very short time obtain everything we have ever asked.” Again and again he had stressed the theme: “You want our help as much as we do yours…. Our liberties cannot be secured but by the Union.” The French leader had wavered in doubt and indignation as the actual union scheme took shape. But finally Hincks had laid the basis for agreement on the responsible principle that would allow LaFontaine and his associates and Baldwin and his colleagues to work in close collaboration. And meanwhile in Upper Canada, reform hopes for responsible government had joined with tory and conservative expectations of material benefits to produce the majority for union that Governor Thomson had been seeking with purposes of his own. On the one hand, the Governor managed to bring Robert Baldwin into the Upper Canadian administration in 1840 as Solicitor General. On the other, he worked effectively through William Henry Draper, the Attorney General, a handsome, urbane lawyer of English origin and noted parliamentary skill; an open-minded conservative who was far from being one of the old Compact tory element. Thomson was even able to use the majority he had gathered in the last legislature of Upper Canada to treat “the one great overwhelming grievance,” as he termed it – the clergy reserves, that one-seventh of the public lands allocated to endow the Church of England and repeatedly assailed by non-Anglican inhabitants of the western province as the unjust monopoly of a privileged minority. The Governor skilfully negotiated a measure to apportion among other churches some of the funds from sales of clergy reserves. Although this sectarian compromise settlement of 1840 pleased neither high Anglican tories nor those reformers who had pressed for outright secularization of the reserves, it did offer a modus vivendi for the future, and hence was acceptable to a broad middle group. That, in fact, was the essential response of Upper Canada to the union of February, 1841. There were reasons to doubt its wisdom – but it was a modus vivendi that opened a broader, more inviting road ahead than the old paths of extremism which the province had been following. Compact tories might be only sulkily acquiescent, especially in Tory Toronto. Eclipsed radicals might chafe at the failure to achieve a fully elective democratic state. But the majority of Upper

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Canadians, of both reform and conservative leanings, had turned their backs on extreme opinions, and despite misgivings as union was inaugurated, they were ready to try to make it work. It could only be hoped the mass of Lower Canadians would come to the same views.

Not e   1 Excerpt from J.M.S. Careless, The Union of the Canadas: The Growth of Canadian Institutions 1841–1857 (Toronto: McClelland & Stewart, 1967), 1–13.

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Second Capitulation of the French Canadians, 1839–1842 Maurice Sé guin 1

I n t r o d u c tion The dual rebellion of British settlers and French-Canadian “Patriots” in 1837, and the ensuing investigation by Durham, pointed to the necessity of union. The combination of various factors made it possible, at last, to implement the plan of grouping together all the English forces in the St. Lawrence valley to form a majority alongside the French-Canadian minority. Given the general state of disorganization, the plan, initially laid out in 1806–1810 and almost applied in 1822, could no longer be postponed. I – April 1839: London Decides at Last to Unite the Two Canadas 1 . Leg isl at i v e or Fe de r a l Uni o n ? Durham had been impressed by the advantages of a federal union but, as we know, had resigned himself to the idea of a legislative union. However, in Great Britain, the supporters of a federal union did not give up the fight easily. Nothing could be more revealing than the comments made by Viscount Howick – the future Earl Grey and Secretary of State for the Colonies – concerning the Durham Report. Howick made no secret of the fact that he preferred a federal union. 2 . Lo n d on Op t s for a L e gi sl ative U n io n In early 1839, the Prime Minister of Great Britain decided to implement a legislative union. In June, Russell, who had become Secretary of State for the Colonies, brought the matter before the imperial

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Parliament. The union was accepted in principle by London, but the consent of the two Canadas was still required. Thomson became Governor of Upper Canada and Lower Canada, and was given the mission of obtaining a vote from the colonies in favour of union. II – Divergent Views among Politicians 3 . Pa pi ne au De nounc e s t h e U n io n an d D re am s o f A n n ex at i on wi t h t he Uni t e d S tate s In exile in Paris, Papineau drafted a “history of the insurrection in Canada” in response to Durham. He criticized the British merchants in Lower Canada: “It was they who, as early as 1808, outlined the plan for the tyrannical government of which Lord Durham has simply adopted the shameful paternity,” in other words “the absorption of the French population by the English population through the union of the two Canadas.” Papineau dreamed of an independent French Canada within the federal union of the United States. Obsessed with federalist philosophy, he wrote, “On the day of our independence, the right of shared citizenship and free trade [with the other American states] will ensure peace and progress in Canada.” Papineau appeared to believe that in the United States, each state was sovereign under the protection of Congress, which could not act as a tyrant given that its powers concerned only war and peace, along with foreign trade. Papineau, like Étienne Parent, could not gauge the degree of annexation, provincialization, and limitation affecting a local state within a federal union. Papineau’s federalism led to annexation by the United States; Étienne Parent’s federalism led to annexation by British North America. 4 . Hin ck s a nd L a Fonta i ne Face th e P ro bl e ms o f U n io n a nd Nat i ona l i t y Hincks, in Toronto, one of the reformist leaders in Upper Canada, was aware of the need for English liberals to obtain the cooperation of French-Canadian reformers in order to gain control of the future parliament of United Canada. As early as April 1839, Hincks wrote to LaFontaine: Lord Durham ascribes to you national objects; if he is right, union would be ruin to you; if he is wrong, and that you are

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really desirous of liberal institutions and economical government, the union would in my opinion give you all you could desire … If we all combine as Canadians to promote the good of all classes in Canada there cannot be a doubt that under the new Constitution worked as Lord Durham proposes, the only party which would suffer would be the bureaucrats. LaFontaine denied, in his reply, that the French Canadians had any national goals. Reassured, Hincks continued his reasoning: Durham, as he did not want to subordinate you to the British minority of Lower Canada, had well understood that the British people of Upper Canada would be your friend. And so they will be, I am certain of this … I completely share your sentiments towards this infamous “British Party” of Lower Canada, which I hate wholeheartedly as much as you do … Nevertheless, I see no hope for you to obtain a constitutional, representative and liberal government without a union of the Canadas or of the five provinces of British North America … You did not face “a good sample” of the generous English people … in the sanguinary party that pretends to be British in Lower Canada. On October 9, 1839, LaFontaine raised the question of a federal union. Was this not a sign that LaFontaine also, at this period, was attracted by the federalist mirage? “I am convinced, Hincks repeats, that union is the best of all plans. A representative government (i.e., responsible) and union will give us all that we want or should bring us ‘separation’.” LaFontaine appeared to be shaken by Hincks’ arguments and also appeared to accept the union. 5 . Ét ienne P a r e nt : Wor k i ng f o r As s imil atio n ? On May 13, 1839, Étienne Parent wrote: We call on our compatriots to make a virtue of necessity; and not to struggle foolishly against the inflexible course of events … We have always considered that our “nationality” could only be maintained through the benevolent tolerance, if not the active assistance, of Great Britain. But now we are told that, far from helping us preserve our nationality, an active effort will be made to extirpate it from this country. In the position in which they

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find themselves, French Canadians can only … resign ­themselves to the situation. Doubtless we would have found it sweeter to live and die with the hope of preserving, along the shores of the St. Lawrence, the nationality of our forefathers … which England appeared at first to favour, more through politics probably than through justice, and that through politics it will now strike out … It will sacrifice us to the English population of the two Canadas, without thinking that that population, having nothing to lose in a separation from England, will have less reason than us to endure the hardships and inconvenience that come from colonial status. But that is England’s business. […] And our business, as French Canadians, immolated by England in response to the demands of a favoured minority, without thought for those Acts or guarantees that provided a sworn social contract, is to show … that we are ready to bring all the necessary goodwill to this proposed union. […] By resigning ourselves to Lord Durham’s plan, which does not mean that we accept it as a measure of justice and sound politics, we intend to follow it in all its favourable aspects. Durham gives the example of Louisiana; we expect, as a result, that we will not be treated any worse than our former compatriots in Louisiana; we will expect equality of representation, the revision rather than the destruction of our laws, and the free use of our language … until the English tongue has become familiar to the common people … What we agree to abandon is the hope of seeing a purely French nation, and not “our institutions, our language and our laws”, provided they are capable of being coordinated with the new state of political existence that it is intended to impose upon us. […] Assimilation, in the new scheme of things, will happen gradually and smoothly and will be even swifter if left to its natural course and if the French Canadians are drawn to it by their own interest, without any injury to their self-esteem. On October 23, 1839, Parent returned to this idea in more detail: There were some people, including ourselves, who thought that with the support and encouragement of England, the French Canadians would be able to pride themselves on ­preserving and extending their nationality in a way that would eventually allow them to form an independent nation. We

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believed, and still believe, that it would have been a wise policy on the part of England to promote the extension and strengthening in Lower Canada of a nationality that differed from that of neighbouring states. But in Great Britain, people think ­differently. […] What remains for the French Canadians to do in their own interest and the interest of their children, if not to strive with all their might for assimilation in order to break down the barrier separating them from the population that surrounds them on all sides, that is already more numerous and that grows through substantial annual immigration? Aware of England’s intention, it would be pure blindness and folly on the part of the French Canadians to remain, deliberately and obstinately, a separate people in this part of the continent. Fate has spoken: the goal today must be to lay the foundations for a great social edifice on the shores of the St. Lawrence, to unite all the elements of society along the banks of this great river to form a grand and powerful nation … Of all these social elements … we must choose the most vigorous, and the others must incorporate themselves with it through assimilation. Between May 1839 and December 1840, in other words over a period of roughly twenty months, Étienne Parent was convinced that the union of the two Canadas, even accompanied by ministerial responsibility and fair treatment by the liberals of Upper Canada, would eventually lead to the assimilation of the French Canadians. Union would also hasten independence for the Great English Canadian Nation and precipitate the dismemberment of the Empire. However, during the period during which he believed in FrenchCanadian assimilation, Étienne Parent occasionally dreamed of a return to the separatism of 1791, but this time with a truly representative constitution and a genuinely responsible government. III – Steps towards Union 6 . N ov em b e r : T h e Sp e c i a l C ou n cil o f L ow e r Can ada A ppr ov es Uni on Once high-profile French Canadian leaders in Lower Canada, such as Parent and LaFontaine, appeared ready to accept union, Thomson

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convened the Special Council, which had equal numbers of French Canadian and British members. The Council approved the union proposal, with twelve members, including Chief Justice James Stuart, Moffatt, McGill, and Molson, voting in favour and three, including a single French Canadian, Quesnel, voting against. Thomson was able to write to London: The ultra-French desire an immediate return to the old Constitution. The ultra-British the disfranchisement of the French Canadians. But even they have been satisfied, I believe, by a little management and a good deal of firmness, that both were equally out of the question, and have now joined with the great mass who hold the middle opinion in favour of the Union measure. The “Canadian” and the “Montreal Herald” lie down together upon this point. In short, the unanimity is wonderful. 7 . D ec e m b e r : T h e L e gi sl at ur e o f U p p e r Can ada A ppr ov e s Uni on In 1839, the legislature of Upper Canada agreed to legislative union with Lower Canada. In reply to the representatives of the city of Toronto, who demanded special measures to ensure a majority of loyal British subjects, Thomson stated: “The union must be framed on principles of equal justice to all her Majesty’s subjects.” Thomson foresaw more difficulty with the legislature of Upper Canada. The greatest difficulty, he felt, would be to persuade Upper Canada to recognize the French Canadians’ right to a “fair share” of the seats in the new legislature for United Canada. Thomson could easily demonstrate that Lower Canada held “the key” to Upper Canada’s prosperity, and that union was necessary not only to restore a representative regime in Lower Canada, but also, and especially, to ensure prosperity in Upper Canada. When union was put to the vote at the Legislative Council of Upper Canada, fourteen councillors voted for, and eight against. In the House of Assembly, forty-seven members voted for union, and six against. The plan was finally accepted by the Assembly by a majority of forty-one votes. Several people wanted to see Upper Canada given more members in the assembly than Lower Canada. Equal representation, in other words an equal numbers of members from both Upper and Lower

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Canada, was finally agreed by a vote of thirty-three to twenty, or a majority of only thirteen votes. However, the legislative assembly agreed unanimously to merge the debts of the two Canadas. 8 . Mov e m e nt a ga i nst Uni on i n L ow e r Can ada ( 1840) The form of union voted for in Upper Canada triggered a wave of protest against the idea of union itself. The movement first emerged in the city of Quebec, led by John Nielson with support from Étienne Parent. “There is no good to be gained from union,” wrote Parent, “given the prevailing feeling in Upper Canada.” Parent returned, easily enough, to his dream of going back to the 1791 Constitution, but with full ministerial responsibility. A petition against union was circulated in Quebec and the surrounding area at the end of January 1840, and the Bishop of Quebec called on parish priests in the region to use their influence to encourage their parishioners to sign. In Montreal, Monseigneur Lartigue deplored the fact that no layperson had come forward to organize protest meetings, and considered whether to ask the clergy to speak out against union. Also in Montreal, Thomson met Monseigneur Bourget, the coadjutor bishop of Montreal, who justified the intervention by Monseigneur Signay in Quebec and even began to defend the “separatism of 1791.” Should 600,000 to 700,000 good subjects be deprived of their rights, the bishop asked, because of a revolt by one thousand settlers? Monseigneur Bourget went so far as to tell the Governor: There is much bad feeling between the British and the Canadians. This is precisely why the ministers gave us the constitution of 1791, since as able politicians they considered that the two peoples could never live in union and harmony … and wisely proceeded to create two colonies, one for the British and the other for the French Canadians. At the end of February 1840, an assembly was at last called in  Montreal to protest against union. LaFontaine momentarily ­distanced himself from Hincks and was able to gain approval for the text of a petition against union that accused Great Britain of being responsible for the colonial crisis. Monseigneur Lartigue, in turn, considered it more prudent to circulate a separate petition among the clergy that made no accusations against the imperial

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government. In April, the hope in Lower Canada was that the union project would fail. 9 . T he I m p e r i a l P a r l i a m e nt V o te s f o r U n io n : T he Prov i nc e of C a na da The main focus of the debate, in Great Britain, was the idea that French Canada should not be able to block the development of British North America. One of two options was possible: either French Canada was to be completely assimilated, or the French Canadians were to be left to subsist as a minority people. Either way, however, the British had to have the ascendancy. In the House of Commons, one hundred and fifty-six members voted for union, and only six against. In the House of Lords, one hundred and seven voted for the Bill, and ten against. It is interesting to note that many of those voting against union wanted to maintain Lower Canada under a separate regime, making it a Crown colony with a Governor and Council, but without a representative assembly. Union was approved by London in July 1840. The organic law for the Province of Canada provided for forty-two representatives from each division, namely Canada West, the former Upper Canada, and Canada East, the former Lower Canada. English was decreed as the only official language, but the use of French in speeches in parliament was permitted. Existing laws in each division remained in force. This legislative union closely resembled a federal union; already, the unions proposed in 1810 and 1822 had been broadly similar. This comes as no surprise when we remember that Chief Justice Stuart was one of the instigators of the Bill. In short, legislative union was the fall-back position since a true federal union could not be achieved. 1 0 . La F onta i ne a nd P a r e nt Co m e Ro u n d to th e Id e a o f U n io n The protest movement against the union became a movement to repeal the union. Hincks intervened to rally LaFontaine, explaining that after the events of 1837, the French Canadians could never recover their rights in a separate Lower Canada. “You want our help as much as we [the reformers in Upper Canada] do yours.” Hincks invited LaFontaine to Toronto, and LaFontaine made the trip, returning definitively converted to the cause of the legislative union.

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In August 1840, LaFontaine published his “Address to the Electors in the County of Terrebonne,” which summarizes all the lessons on pan-Canadianism learned from Hincks. Future events in our country will be of the utmost importance. Canada is the land of our ancestors; it is our homeland, just as it must be the adoptive homeland of the people who come from various corners of the Earth to enjoy the resources of its vast ­forests with a view to settling here and making it their permanent home and the focus of their interests. Like use, they must seek, above all, happiness and prosperity for Canada. This is the heritage that they must hand on to their descendants in this young and hospitable land. Their children must be, like us, and above all, C A NA DI A NS. LaFontaine’s words show that he accepted a majoritarian British Canada. Continuing, he encouraged reformists in Canada-East to strive to achieve responsible government in the Province of Canada, as Durham had foreseen. He promised his support for a policy of major works to channel the St. Lawrence, another idea proposed by Durham. Last, he indicated a lack of interest in demanding the recall of the union. Étienne Parent, in turn, thanked Hincks, the great Toronto l­ iberal, for preparing the way for a meeting of minds. Although we are sincerely opposed to the legislative union of the two Canadas, especially as enacted, we are too aware of the anarchy, the political and social misery that would follow … any agitation to repeal the union not to wish that the two populations will come to an agreement and will progress together towards the brilliant destiny that nature has placed within their grasp. Étienne Parent, after LaFontaine, accepted a majoritarian British Canada. 1 1 . Pa r e nt Dr e a m s of A Fe de r al U n io n Étienne Parent, in response to various movements for local autonomy that had arisen in Ireland, Cape Breton and New South Wales, stated:

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Instead of a union of provinces, … the interest of our colonies and of the home country rather points to the need for subdivision … This is what has proved a success, before our very eyes, among our neighbours in the United States, where new states have gradually become established alongside existing states. […] If for imperious reasons of general policy, it became necessary to unite several regions in the same jurisdiction, this should only be done for limited and general purposes, leaving each section with local jurisdiction. In this case, the federative system should be followed. This was Lord Durham’s first idea, and it was only after his judgment had been clouded by iniquitous and interested opinions that he recommended the legislative union of the two Canadas and abandoned his plan to federate all the English ­colonies in this part of the American continent. When he learned (on February 6, 1842) that the population of the United States had reached the 17,000,000 mark in 1840, Étienne Parent foresaw the day when it would reach 100,000,000. In such a case, a solid “rampart” would have to be raised to protect Canada from the enormous pressure weighing on the borders of the British colonies. The creation of a nationality [in the broad sense including French Canadians] founded on a broad base and nourished by shared hopes would be the only way to prevent the colonies from being drawn into the whirlpool of the US states. Lord Durham was the first to propose this idea. A confederation, composed of the two Canadas and the provinces of the Gulf, with a local legislature for each province, following the model of the American union, is a plan that should not be lost from sight. IV – Reactions to the Proclamation of the Union (1841) 1 2 . Febr ua ry : T h e P r e va i l i ng S ituatio n at  t he   P r oc l a m at i on of Uni o n Thomson, who had become Lord Sydenham (“of Sydenham and Toronto”) proclaimed on February 10, 1841, that Upper and Lower Canada were once again reunited after being separated for almost fifty years.

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The rivalry between Sydenham and LaFontaine, and the absence of French Canadians on the Executive Council following the proclamation, appeared to set the stage for a new national struggle and dark days ahead. Parent wrote: “We, here in Lower Canada, understand the folly, the absurdity of national struggles … Both peoples have a responsibility to avoid rekindling … this struggle on a wider scale in United Canada.” 1 3 . Pa r e nt : A ssi m i l at i on I s Now Imp o s s ibl e Parent, who had believed assimilation to be inevitable, rallied once the union had come into effect. As early as December 1840, he wrote: “The French language has become so deeply rooted in Lower Canada that nothing on Earth can extract it now.” In March 1841, this former advocate of assimilation denounced “those who preach surrender … those who say: ‘Since we cannot do what we want, why not do what other people want? Let us dilute our nationality, we will lose it anyway, all struggle is futile.’” In July 1841, Parent toured the region around Kingston, the temporary capital of United Canada. After fearing the assimilatory strength of English Canada, and especially the possibility that Upper Canada would become so powerful that it would eclipse Lower Canada, he was far from impressed by the this poverty-stricken region of Canada West. I have yet to see anything in this Breton, or British country to arouse the envy of a Lower Canadian. With a strong system of popular education to activate and direct the intelligence of our vigorous population and develop the resources of our fine country, Lower Canada will retain for a long time its rank among the British possessions on this continent. Let us not fall into despondency … We can thwart all schemes and all temptations from without or within, and prove that the 1840 Act of Union was not able, any more than the Act of Cession of 1763, to announce our death. We have shown ourselves able to do without the protection of our former homeland, and we will show ourselves able to do without that of our new mother country. Foreseeing a struggle between the reformers and Sydenham in order to obtain a true responsible government, Parent added: “You will see how Lower Canada will save the United Province.”

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1 4 . B a got : “ H ow to I nc or p or ate ” F re n ch Can ada in to En gl i sh C a na da (1 8 4 2 ) Bagot succeeded Lord Sydenham as Governor. Before the new governor had even arrived, some London newspapers hinted that, although a conservative, he could prove even more liberal towards the French Canadians than the “liberal” Sydenham. Bagot was instructed to deal fairly with all Her Majesty’s subjects, with no distinction as to origin. Since Sydenham had imposed union partly by stealth, he had not won the trust of the French Canadians and could not rely on them to cooperate mindlessly, as a minority, with English Canada. Bagot understood that, as the new governor, he had a new opportunity to succeed. Doubtless, as he courted the favour of the French Canadians, he knew that his only option was to win over an entire people, in other words “as a race … and not as a mere party.” Bagot was not entirely confident. He wondered whether the FrenchCanadian parliamentary group, led by LaFontaine, would demand a change in representation, a new constitution or the immediate and full establishment of “responsible government.” What should the new governor do? Bagot succeeded in frightening himself and in communicating his fear to the imperial Cabinet. His fears were, however, groundless. 1 5 . Sep t e m b e r : L a Fonta i ne C ap itu l ate s The French Canadians, or at least a large majority under the influence of LaFontaine, Morin and Parent, approved the union; by doing so, they agreed to become a minority in the “British” Province of Canada. In September 1842, to win the support of the French Canadians in the House, the Bagot administration had only to admit two French Canadians to the Executive Council and to offer Étienne Parent a position as Secretary to the Council. Bagot was jubilant – he had just rallied the liberals of Canada West and Canada East, in other words Baldwin and LaFontaine, without having to shuffle his Executive Council; the Council could also remain without responsibility, even though the Liberals exercised a slight influence. Above all, he had overcome the mistrust of the French Canadians and had incorporated them as part of the regime. H.M. Government, Bagot wrote, must always bear in mind that the British party outnumber them [the French Canadians] in

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both [the Executive Council and the Assembly]. I have admitted the French Canadians not to the control of the Govt. nor to a preponderance in it, but only to a moderate share in the public administration of affairs. V – Meaning of 1842 1 6 . T r ium p h of P r ov i nc i a l A u to n o m y in  Fr en c h  C a na da The admission of French Canadians to the Executive Council, in other words of men backed by a majority of French Canadian members in the Assembly, marked the de facto beginning of domestic government in Lower Canada by French Canadian leaders. From this point of view, 1842 is a key date: it marks the semi-emancipation of French Canada and the triumph of provincial autonomy. This was a clear improvement in the political position of French Canadians since the Conquest of 1760. They no longer had to influence the executive, a foreign body, via a House of Assembly whose leaders were kept at a distance from the administration. For all practical purposes, the domestic administration of Canada East was politically – but obviously not economically – under the control of French Canadian leaders. 1 7 . A n ne xat i on of Fr e nc h C a n ada to  En g l i sh   C a na da Besides the question of provincial autonomy, however, this moment also marked the acceptance by French Canadians of their destiny as a minority people within a British union. By accepting local autonomy, they had peacefully submitted to a foreign people, now more numerous – and as always richer and more powerful. The union had strengthened its political and economic power, and this foreign people, thanks to the union, could now consolidate its influence through sheer numbers. Union, as the only logical solution at the time, was inevitable. It was made necessary by the higher interests of English colonization. It was not a whim on the part of a conqueror, or a punishment for the temporary disloyalty of the French Canadians. It did not result from a policy of persecution, a strategy that had been considered, let us not forget, in 1806 and 1822.

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The legislative union with concessions of a federal (or federative) nature to the French Canadian minority operated spontaneously as a federation or federal union. And since 1842 the French Canadians have survived, annexed, provincialized, within a greater British Canada. This solution, the only one available and one that could not be rejected was, in fact, accepted by LaFontaine, Parent, their successors and the French Canadian majority with relative ease after only a few years of uncertainty (1839 to 1842). They even accepted it with a measure of enthusiasm, since it incorporated the application of the federalist principle which, in their view, had no major disadvantages for a minority people (see Appendices 2 and 4). French Canada was the victim of a double capitulation. The capitulation of Vaudreuil led to the inevitable and unconscious capitulation of LaFontaine. This second capitulation, although necessary and even comprehensible, was still a capitulation, or in other words a surrender to a superior force. An entire people was forced to live and to agree to live as a minority, under a foreign majority, without even being in a position to gauge the seriousness of the situation.

C o n c l u sion 1 7 6 0 a nd 1 8 4 0 The political history of French Canada can only be properly understood by taking into consideration the inevitable disaster that took place in two instalments and was announced in 1760 by: 1 the change of empire and English colonization; and then by 2 the consolidation in 1840 via the Union of British forces within the Province of Canada. In 1760, the Conquest, the first blow, introduced British settlement in Canada. Another blow, the Union of 1840, finally sealed the dominant position of the new settlers. [In the margin, Séguin places a question mark.] British Montreal and, in the shadows, the whole of British North America, had vetoed Quebec separatism. [In the margin, Séguin places a question mark.] Translated by Benjamin Waterhouse

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Not e   1 Excerpt from Maurice Séguin, Histoire de deux nationalismes au Canada (Montreal: Guérin, 1997), 306–21.

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Bibliography

Bourinot, John George. Canada under British Rule, 1760–1900. Cambridge: Cambridge University Press, 1900. Brunet, Michel. French Canada and the Early Decades of British Rules, 1760–1791. Ottawa: Canadian Historical Association, 1981. Burt, Alfred LeRoy. The Old Province of Quebec. New York: Russell and Russell, 1970. First published in 1933 by the University of Minnesota Press. Careless, J.M.S. The Union of the Canadas: The Growth of Canadian Institutions 1841–1857. Toronto: McClelland & Stewart, 1967. Chapais, Thomas. Cours d’histoire du Canada de 1760 à 1867. 8 vols. Quebec: Librairie Garneau, 1919–34. Garneau, François-Xavier. Histoire du Canada depuis sa découverte jusqu’à nos jours. 4 vols. Quebec: Imprimerie de N. Aubin, 1845–52. Groulx, Lionel. L’histoire du Canada français depuis la découverte, 4th ed. 2 vols. Montreal: Fides, 1960–61. Kennedy, William Paul McClure. The Constitution of Canada: An Introduction to Its Development and Law. London: Oxford University Press, 1922. Lower, Arthur R.M. Colony to Nation: A History of Canada. Toronto: McClelland & Stewart, 1977. Marion, Séraphin. “L’Acte de Québec, concession magnanime ou intéressée ?” Les Cahiers des Dix 28 (1963): 147–77. McArthur, Duncan. “Constitutional History.” In Canada and Its Provinces: A History of the Canadian People and Their Institutions, edited by Adam Shortt and Arthur G. Doughty, 421–88. Toronto: Glasgow, Brook, 1914–17.

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Neatby, Hilda. Quebec: The Revolutionary Age, 1760–1791. Toronto: McClelland & Stewart, 1966. Séguin, Maurice. Histoire de deux nationalismes au Canada. Montreal: Guérin, 1997. Tousignant, Pierre. “Problématique pour une nouvelle approche de la Constitution de 1791.” Revue d’histoire de l’Amérique française 27 (1973): 181–234. Vaugeois, Denis. L’union des deux Canadas: nouvelle conquête? ­Trois-Rivières: Éditions du Bien public, 1962. Wade, Mason. The French Canadians, 1760–1945, New York: Macmillan, 1955.

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Biographical Notes

Sir Jo h n Ge or ge s B our i not (1836, Sydney, Nova Scotia–1902, Ottawa, Ontario) After a short period of study at Trinity College in Toronto (1854– 56), Bourinot became the parliamentary reporter for the Toronto Leader and then, in 1860, co-founded the Reporter in Halifax, which he edited until 1867. He then worked as English clerk and shorthand writer to the Canadian Senate (1869–73) and second clerk assistant (1873–80) and clerk (1880–1902) to the House of Commons. A founding member and president (1892–93) of the Royal Canadian Society, he maintained a strong interest in law, parliamentary procedure and constitutional history throughout his career. His best-known works are Parliamentary Procedure and Practice in the Dominion of Canada (1884), How Canada is Governed (1895), and Canada under British Rule, 1760–1900 (1900). Mic hel B r une t (1917, Montreal, Quebec–1985, Montreal, Quebec) Brunet began his career as a teacher, later studying for a master’s degree in contemporary history at Université de Montréal (1947) and a doctorate in American history at Clark University in Massachussetts (1949). After his appointment as professor at Université de Montréal, he chaired the history department (1959– 67) and then became vice-dean of the Faculty of Letters (1966–67). He was also a member (1959–70) and chairman (1970–71) of the Institut d’histoire de l’Amérique française. A key figure in the Montreal school of history, with his colleagues Maurice Séguin and Guy Frégault, he helped develop the neo-nationalist interpretation.

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His most significant works include Canadians et Canadiens: Études sur l’histoire et la pensée des deux Canadas (1954), La présence anglaise et les Canadiens: Études sur l’histoire et la pensé des deux Canadas (1958), and Les Canadiens après la conquête, 1759–1775 (1969). In 1985 he was awarded the Prix Léon-Gérin by the Quebec government for his lifetime achievement. A lfr ed L e r oy B urt (1888, Listowell, Ontario–1971, Wellesley, Massachusetts) Burt graduated from the University of Toronto with a bachelor’s degree in history (1910). He was then named the Rhodes Scholar for Ontario and earned bachelor’s (1912) and master’s (1916) degrees at the University of Oxford. He began his career as a lecturer in history and associate professor at the University of Alberta (1913–20), before moving to the University of Minnesota (192057). He remained active as a visiting professor at a number of universities (1957–61) and in 1966 received an honorary doctorate from the University of Alberta. He was a member of various associations, including the Canadian Historical Association. His work is characterized by the use of primary sources from Canada’s public archives. He had a keen interest in Canadian history and relations between the French-Canadian and English-Canadian communities. His publications include The Old Province of Quebec (1933), The United States, Great Britain and British Canada (1940), and The British Empire and Commonwealth (1956). Ja mes Maur i c e Stoc k for d C a re l e s s (1919, Toronto, Ontario–2009, Toronto, Ontario) Careless was a graduate of the University of Toronto (1940) and earned a master’s degree at Harvard University (1941). He enrolled in the Canadian armed forces and worked in the historical branch of the Naval Service Headquarters at Ottawa and then at the Department of External Affairs. In 1950 he was awarded a doctorate by Harvard University. He began his academic career at the University of Toronto as a lecturer in Canadian history and politics (1945), before being appointed as an assistant professor (1949), professor (1959), chairman of the Department of History (1959–67) and professor emeritus (1984). He was an active member of numerous historical associations, including the Royal Society of Canada, where he became a Fellow in 1962, and received numerous distinctions. He

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was named an Officer of the Order of Canada in 1981. He authored several books, including Canada: A Story of Challenge (1953) and Brown of the Globe (1963), which both received Governor General’s Awards, and became a leading light in the field of Canadian history. T ho ma s C h a pa i s (1858, Saint-Denis de Kamouraska, Quebec–1946, Saint-Denis, Quebec) Chapais graduated from the Faculty of Law at Université Laval, and was called to the Bar of the Province of Quebec in 1879. He received a doctorate in letters from his old university in 1898. He was active in several spheres, including journalism, politics, and academics. After working as the chief editor of the weekly newspaper Le Courrier du Canada (1884–1901), he became its proprietor, also acquiring the Journal des campagnes (1890–1901). He wrote for numerous other newspapers, including La Presse (1897–1911) and the Revue canadienne (1899–1922), and for various historical reviews. In the  political arena, he was principal secretary to the lieutenantgovernor of Quebec (1879–84) and a member of Quebec’s legislative council (1892–1946) as the leader of the government (1893–94, 1936–39, 1944–46) and Speaker (1895-1897). He was also a minister without portfolio in the governments of Taillon and Duplessis and a senator for the Conservative Party (1919–46). As a historian and man of letters he was considered an ultramontane. He taught history at Université Laval from 1907 to 1935 and published a series of books on New France and British rule. His Cours d’histoire du Canada, 1760–1867 (1919–34) reproduces the content of his university lectures. He held various positions in learned societies and his achievements were rewarded in the form of titles and distinctions including the Légion d’honneur in France (1902) and the rank of Knight Bachelor (1935). Fr a n ç oi s-Xav i e r Ga r ne au (1809, Quebec City, Quebec–1866, Quebec City, Quebec) Garneau trained as a notary but is best known as a self-taught historian and poet. He practised his profession intermittently, but also worked at banks, as French translator to the Quebec Legislative Assembly (1842), and clerk of the city of Quebec (1844). He quickly developed an interest in history, politics, and poetry and published poetry and historical excerpts in various newspapers, including

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Le Canadien. He devoted a large part of his energy to writing Histoire du Canada depuis sa découverte jusqu’à nos jours, publishing the first volume in 1845. The History, recognized as the most important contribution to French-Canadian historiography during the nineteenth century, made Garneau the leading national historian, and he was influential in founding the Institut canadien and the Société SaintJean-Baptiste in Quebec. He inspired and influenced succeeding generations of historians. Lio n el Gr oul x (1878, Vaudreuil, Quebec–1967, Vaudreuil, Quebec) After studying classics and theology, Groulx was ordained as a priest in 1903. He continued his studies in Europe, where he obtained doctorates in philosophy (1907) and theology (1908) at Minerva University in Rome. He also completed a master’s degree in arts (1917) at Université Laval à Montréal and was awarded a doctorate in letters (1932) by Université de Montréal. A teacher and educator, he worked in many different institutions, including Collège de Valleyfield (1900–15), École des hautes études commerciales de Montréal (1915–20) and Collège Basile-Moreau (1927–50), before being appointed as professor of history at Université de Montréal in 1915. He held the first-ever chair of Canadian history (1915–49). A passionate historian, he also edited the magazine L’Action française (1920–28), founded the Institut d’histoire de l’Amérique française (1946), and directed the Revue d’histoire de l’Amérique française (1947– 67). He was politically engaged, and his social and national militancy became known through numerous publications and speeches. Groulx received many honorary distinctions and became one of the emblematic figures of the French-Canadian and Québécois nationalist movement. Willia m P aul M c C l ur e K e nne dy (1879, Shankill, Ireland–1963, Toronto, Ontario) Kennedy studied at Trinity College, Dublin (1900) and quickly developed a keen interest in literature and history. After arriving in Canada in 1913, he taught English at St Francis Xavier University in Nova Scotia (1913–15) before being hired as a lecturer in English and history at the University of Toronto (1915). He became an associate professor of history (1923) and then professor of law and political institutions (1926), helping create the Department of Law and eventually becoming dean of the Faculty of Law (1944–49). In 1935,

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he founded and edited the University of Toronto Law Journal (1935– 49). He became a member of the Royal Society of Canada (1935) and advised various investigative commissions, including the Royal Commission on Dominion-Provincial Relations (1937). He wrote a large number of articles and reference works on Canadian constitutional history and constitutional law, including The Constitution of Canada: An Introduction to Its Development and Law (1922) and Some Aspects of the Theories and Workings of Constitutional Law (1932). A rt hu r R e gi na l d M a r sde n L ow e r (1889, Barrie, Ontario–1998, Kingston, Ontario) Lower studied history at the University of Toronto and then obtained a doctorate at Harvard University (1929). He taught Canadian history at Wesley College in Winnipeg (1929–47) and Queen’s University in Kingston (1947–59), where he held the Douglas Chair in Canadian and Colonial History. He was chairman of the Canadian Historical Association (1943) and Royal Society of Canada (1962– 63), received two Governor General’s prizes (1946 and 1954), and was named a Companion of the Order of Canada (1968). Described as a liberal nationalist historian, he was known as a defender of the idea that Canada was founded on two nations, and for his work on Canadian social history. His works include Colony to Nation (1946) and Canadians in the Making: A Social History of Canada (1958). Sér a ph i n M a r i on (1896, Ottawa, Ontario–1983, Ottawa, Ontario) Marion obtained bachelor’s (1918) and master’s (1922) degrees in the arts from the University of Ottawa, followed by a doctorate from the University of Paris (1924). After teaching French at the Royal Military College in Kingston (1920–23) he worked as professor of French-Canadian literature at the University of Ottawa (1926–52), where he helped create the Faculty of Letters (1927) and contributed to the Revue de l’Université d’Ottawa. His tasks as translator and director of historical publications at the Public Archives of Canada (1923–53) provided an opportunity to conduct research into French-Canadian history and literature, and he published his findings in, for example, Lettres canadiennes d’autrefois (1939–58). Marion was a member of the Royal Society of Canada, the Académie canadienne-­française and the Société des Dix and lectured widely throughout the country, becoming a standard-bearer for the protection of French-speaking minorities outside Quebec. He received a

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number of distinctions, and was named a member of the Order of Canada (1976). D u n c a n M c A rt hur (1885, Dutton, Ontario–1943, Grand Bend, Ontario) McArthur obtained a master’s degree from Queen’s University (1908) and continued his education at Osgoode Hall, where he obtained a doctorate. He was called to the Ontario Bar in 1915. From 1907 to 1912 he worked with professor Adam Shortt at the Public Archives of Canada, headed by Arthur Doughty, and contributed to the publication of documents about Canadian constitutional history. He was a professor of history at Queen’s University (1922– 34) and also acted as head of the history department. McArthur then became Deputy Minister of Education (1934–40) before being elected as a Liberal member of the Ontario Legislative Assembly (1940) and appointed as minister of education (1940–42). He contributed to various collective works, including Cambridge History of the  British Empire (1929) and Canada and Its Provinces: A History of Canadian People and Their Institutions (1914). Hilda Ne at b y (1904, Surrey, England–1975, Saskatoon, Saskatchewan) Neatby arrived in Canada in 1906, and went on to obtain bachelor’s (1924) and master’s (1928) degrees in history at the University of Saskatchewan and a doctorate at the University of Minnesota (1934). She taught French and history at Regina College (1934–46) before moving to the University of Saskatchewan (1946–69). The first woman to head a history department (1958–69) and to chair the Canadian Historical Association (1962–63), she also became well known for her support for changes to the Canadian education system, playing an important role as a member of the Massey ­ Commission (1949). In addition to several honorary doctorates, she was made a Companion of the Order of Canada (1967). As a historian, she focused on Quebec and in particular the period from 1760 to1791, publishing two key works: Quebec: The Revolutionary Age (1966) and The Quebec Act: Protest and Policy (1972). Mau r ic e Sé gui n (1918, Horse Creek, Saskatchewan–1984, Lorraine, Quebec) Séguin earned a master’s degree in letters (1944) and a doctorate in history (1947) at Université de Montréal, and spent his entire career

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as a faculty member at the same university (1948–84), first as a lecturer (1948), then as a professor (1950), and finally as the titular professor of the Lionel Groulx Chair (1959). Although he published rarely, his teaching and his historical interpretation of what he called the “two Canadas” made his work one of the cornerstones of the neo-nationalist approach of the Montreal school. He was especially interested in the economic aspects of French-Canadian history and sought to distance himself from the dominant historiographical trends of his time. His book Les normes, published in 1965, sets out his interpretational approach. Pier r e T ousi gna nt (1931, Montreal, Quebec–) Tousignant is an honorary professor at the Department of History, Université de Montréal. He is the author of several articles in the Dictionary of Canadian Biography. His thesis on the background to and promulgation of the 1791 constitution, La genèse et l’avènement de la constitution de 1791, was published by Université de Montréal in 1971. He has also published several key papers, including “La première campagne électorale des Canadiens en 1792,” Histoire sociale/ Social History XV(8) (1975), 120–48; and “Groulx et l’histoire-­ interrogation sur le passé en vue d’une direction d’avenir,” Revue d’histoire de l’Amérique française, XXXII(3), (1978), 347–56; see also “Le Bas-Canada: une étape importante dans l’œuvre de Fernand Ouellet,” Revue d’histoire de l’Amérique française XXXIV(3) (1980), 415–36. In 1999, he worked with Madeleine Dionne-Tousignant on his own edition of a classical work, Les Normes de Maurice Séguin: le théoricien du néo-nationalisme (Montreal: Guérin, 1999). D en is Vauge oi s (1935, Saint-Tite, Quebec–) Vaugeois studied literature (1959) and teaching (1962) at Université de Montréal and then completed a master’s degree (1967) and ­doctorate in history at Université Laval (1975). He taught history at various institutions (1955–65) and held various government positions (1965–76) before being elected to the Quebec National Assembly as a Parti québécois member (1976–85) and holding various ­portfolios, including minister of cultural affairs (1978–81) and minister of communications (1979–80). Vaugeois is well known in the publishing world, in particular for his role in the founding of the publishing houses Les éditions du Boréal (1963) and Les éditions

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du Septentrion (1988). He has written a number of books about Canadian, Quebec, and Amerindian history, and his qualities as a historian and writer have been recognized by numerous awards. Hu g h Ma son Wa de (1913, New York, New York–1986, Cornish, New Hampshire) After a short period studying literature at Harvard College in the 1930s, Wade left university and began writing biographies. His work on Francis Parkman quickly sparked an interest in the history of French Canada. After being appointed as public affairs attaché at the US embassy in Ottawa (1951–53), he was offered a position as professor at the University of Rochester in the state of New York (1955–65) and became director of the Canadian studies program. He later moved to the history department at the University of Western Ontario (1965–71). The first American to chair the Canadian Historical Association (1964–65), he also helped set up the Association for Canadian Studies in the United States. Several Canadian universities awarded him an honorary doctorate in recognition of his services to Canadian history. His books include The French-­ Canadian Outlook: A Brief Account of the Unknown North Americans (1946) and The French Canadians: 1760–1945 (1955).

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Index

Acadia, 182 Act of Supremacy 1558 (Britain), 145 Act of Union 1840: and acceptance of French minority, 332– 3; approved in the Canadas, 324–6; ceremonies to inaugurate union, 306–8; consequences, 156, 310; debated, 74–5, 135, 310; enacted, 40, 75–6, 134, 310–11, 327; and English-Canadian majority, 302– 3; origins, 133, 252–4, 299–301, 309–10; possible types of union, 320–1; provisions, 40–1, 75, 135, 310; as punitive policy of assimilation, 134–6; reactions in Lower Canada, 307–8, 311, 313, 326–7, 330; reactions in Upper Canada, 313–15, 318–19 agriculture: after Constitutional Act, 248; after Seven Years’ War, 79; mid-1800s, 76; at time of Constitutional Act, 93 Allen, Ira, 214 American Revolutionary War: begins, 72, 212; and British

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merchants in Quebec, 201, 259–60; effects, 82, 120; events preceding, 86–8, 112, 115, 143, 206, 221, 226, 237; foreseen, 72, 198–9, 210–12; and French Canadians, 72–3, 149; as key to Quebec Act, 212, 215–16, 217, 218–19, 237; raids on Canada, 33, 199, 211, 213–14 Amherst, Jeffrey: as general, 47, 191; as governor-general, 79, 80–1, 111, 191 Anticosti Island, 27, 60, 184 As I Recall (Meisel), 6 Aylmer, 5th Baron (Matthew Whitworth-Aylmer), 133, 166 Bagot, Charles, 136, 138, 289–91, 295–6, 331 Baldwin, Robert: co-leader of first responsible government, 42, 137, 293; establishes concept of responsible government, 251, 283–4, 295–6, 316; key player in constitutional history, 289– 90, 295–6, 300, 302; resigns, 292; as solicitor general, 318

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Baldwin, William Warren, 316 Baring family, 75, 135 Barré, Isaac, 55 Bédard, Éric, 7 Bédard, Pierre-Stanislas, 38–9, 245–6, 250, 300 Behiels, Michael, 9 Berger, Carl, 8 Bernard, Francis, 273 Bigot, François, 192, 194 Board of Trade (and Plantations), Britain: authority over executive council, 187, 189; and French Canadians, 210; as informant and advisor on colonial affairs, 160–1, 183, 210, 222; and Proclamation, 109, 183, 184–5; and Quebec Act, 143; replaced by Committee, 263 Boiret (superior of Quebec seminary), 224 Bond Head, Francis, 295 Boston, Massachusetts, 86, 114 boundaries: under Proclamation, 27, 48, 80, 110, 111, 141, 183– 6; under Quebec Act, 30, 60, 115, 145, 221, 226–7, 237–8 Bourget, Ignace, 326 Briand, Jean-Olivier (Monseigneur): appointed bishop of Quebec, 29, 164, 197; at Conquest, 193, 224; friendship with Carleton, 198; funeral, 207; reassured by Carleton about Quebec Act, 234; returns from London, 225 Britain: and Canada’s national identity, 9; colonial policy in mid-1800s, 137; Conquest of 1760, 25, 140; as France’s

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long-time foe, 181–2, 213; free trade with colonies, 287–9; “Generous Nation!”, 207–8; Glorious Revolution, 260–1; history affected by French–English relations, 103, 114–15; loss of ethnic and religious homogeneity, 104; parliamentary strength (late 1700s), 53–5; political and social order, 256, 260–2; source of Canadian immigrants, 79; trade policies in mid-1800s, 44, 46, 138; trade with American colonies, 86–7; trade with United States, 271; view of French Canadians, 152. See also American Revolutionary War British constitution: admired and venerated, 158; influence of practice on custom, 160; as source of Canadian constitution, 159–60 British North America Act 1774. See Quebec Act 1774 British North America (Constitution) Act 1867: sources, 159–60 British rule. See also French Canada under British rule; defined, 139n2; ease of establishing, 192–3 Brougham, Henry (Lord Brougham), 283 Brown, George, 3 Bruce, James. See Elgin, 8th Earl of Buller, Charles, 282, 316 Burke, Edmund: admires English constitution, 158; Constitutional Act debates, 35, 122, 124, 151, 241, 277; on French

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Revolution, 124; Quebec Act debates, 58, 114, 145, 231, 258; skilled parliamentarian, 54, 55 Burton, Francis, 176 Burton, Ralph, 79, 80, 183, 191 Caldwell, Henry, 250 Camden, 1st Earl (Charles Pratt), 54 Campbell, Colin, 289–90, 294 Canada (province): formed, 40, 306, 327; governance, 40–1, 42, 156 Canada, A Political and Social History (McInnis), 117 Canada and Its Provinces: A History of the Canadian People (Shortt and Doughty), 13 Canada Bill (1822), 70, 74, 133, 164, 320, 327, 332 Canada East: parliamentary representatives, 327; stability brought by French-Canadian nationalism, 156. See also Lower Canada; Quebec (colonial province); Quebec (province) Canada under British Rule (Bourinot), 10–11, 25–46 Canada West: parliamentary representatives, 327; unjustness of constitution to, 156 Le Canadien newspaper, 38, 99, 300, 308, 312, 340 Cape Breton Island, 27 Carleton, Guy (Lord Dorchester): and appointments to council, 119–20, 167; character and leadership, 14, 143, 197–8, 202, 210, 217, 220, 234; and Constitutional Act, 89, 151, 202,

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241, 274–5; defines United Empire Loyalists, 34; and division of Canadas, 34, 36, 63, 266–9; elevated to peerage, 201–2, 267; foresees threats to Canada, 198–9, 210–12; on French-Canadian nationalism, 117; as Governor-General of the Canadas, 33, 133, 150; as Governor of Quebec, 32, 148, 152, 200, 222; on Loyalists, 264; petitioned by English Canadians, 201, 225–6; petitioned by French Canadians, 88–9; and Quebec Act, 61, 86, 143, 145, 146, 197–8, 217, 221, 223–4, 228, 232–3, 234; recommends French law, 146, 239, 259 Caron, René-Édouard, 138 Cartier, George-Étienne: and clergy reserves, 44; key player in constitutional history, 3, 290; statesmanship, 251 Cartwright, Richard, 37 Catholicism. See Roman Catholics Cavendish, John, 58 Charlottetown Accord (1992), 5 Chartier de Lotbinière, Michel, 228–9, 245–6 Chatham, Lord. See Pitt, William, the Elder Church of England. See also Protestants; under Constitutional Act, 36, 163, 318; under Proclamation, 188, 208– 9; under Quebec Act, 146, 154 civil law: codification under TachéMacdonald, 44; Loyalist districts, 33; petitions to King George and Lord Dorchester,

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82–5, 88–9; as support for national culture, 112; under Constitutional Act, 64, 92, 168– 9; under French rule, 50–1; under Proclamation, 28–30, 48, 49, 79–80, 81, 110, 112, 141, 162–3, 195–6; under Quebec Act, 31, 33, 56–8, 115, 142, 146, 228–9, 232–3, 238 civil service: exclusion of Catholics from, 86; French–English composition in early 1800s, 133–4; organization under Spence (1857), 44; and Test Act, 48–9, 56, 61–2, 145, 196, 230; under Constitutional Act, 92, 133–4; under Quebec Act, 96 Clarke, Alured: on French–English relations, 247; as lieutenant-governor of Lower Canada, 172; proclaims Constitutional Act in Lower Canada, 36, 150; on rights and freedoms of Lower Canada assembly, 129 clergy reserves, 30, 43, 165, 169, 285, 318 Coffin, Victor, 211, 219 Colborne, John, 177 Coleman, William, 9 colonies: administration of, 161, 164–5, 183; Crown’s sovereignty over, 160–2; defence of, 162; self-government, 287–9 Colony to Nation (Lower), 118 Conquest of 1760: articles of capitulation, 25–6; effects on French Canadians, 49–50, 95 Constitution Act 1867: sources, 159–60

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The Constitution of Canada, An Introduction to Its Development and Law (Kennedy), 13 Constitutional Act 1791: basis and causes, 89, 121, 124–5, 199– 201, 203, 240, 256–62; and colonial political and social order as compared to Britain, 256, 260–2; as disappointing hybrid policy, 107, 241–2; enacted, 35, 36, 67, 93, 124, 150, 203, 241; governance under, 63–5, 98–9, 125–7, 130– 4, 163–78, 240–1, 300–1; origins in ambitions and frustrations of Anglo-Scots colonial bourgeoisie, 256, 257–60; as policy meeting objectives of Old Colonial System, 263–79; provisions, 35–6, 63, 64–6, 73, 89–91, 92–3, 96, 121–2, 150; reactions and consequences, 123, 125–7; revoked, 75–6; tabled and debated, 34–5, 88–9, 122, 124, 150–2, 241, 274–9 constitutional amendments: after 1982, 5; mechanisms established in 1982, 5; under Constitutional Act, 165–6 Corbo, Claude, 6 Couillard, Philippe, 5 Coupland, R., 212, 213, 215, 217, 218 Cours d’histoire du Canada (Chapais), 11 Craig, James: death, 39; poor administrator, 11, 38, 132, 152, 247; and revenues, 175; sees conflicts over constitution as

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race rather than principle, 13, 129 Cramahé, Hector Theophilus de, 53, 215, 222, 227 Creighton, Donald, 9, 19n10, 210 Crémazie, Octave, 251 criminal law: under Constitutional Act, 92, 168–9; under Proclamation, 28, 48, 49, 79, 81, 110; under Quebec Act, 31, 128–9, 142, 146, 228–9, 238 Cros, Laurence, 8 Crown: effect of Constitutional Act, 163–6; supremacy of, 158– 9, 160–2, 164, 192, 194 Crown lands: Lower Canada, 166, 241; under Proclamation, 248; under Quebec Act, 238 culture, French Canadian. See nationalism, French Canadian Dalhousie, 9th Earl of (George Ramsay), 132–3, 167 Dambourgès, François, 245, 246 Dartmouth, Earl of (William Legge), 53, 55, 226–7, 228 de Bonne, Pierre-Amable, 245 de Grey, William, 117 de Rouville (French officer), 215 Dejean, Philip, 227 Detroit: and Canada–America boundaries, 84, 214, 227, 237; fort, 26 Diderot, Denis, 262 Dominica: British conquest of, 109 Dorchester, Lord. See Carleton, Guy Dorland, Arthur, 208, 217

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Draper, William Henry, 42, 45, 138, 318 Drummond, Lewis Thomas, 43 Dufy (French Canadian militia officer), 215 Dunning, John, 55 Durham, 1st Earl of (John George Lambton): on assault against French Canada, 113, 301; background and character, 279, 281–2, 285; death, 134; on English appointments, 133; and political prisoners from Rebellions, 283; prefers federal union, 320; on racial antipathy in Canada, 81, 126; relationship to Lord Elgin, 42, 281, 293; special council after Rebellions, 177 Durham Report: investigation and drafting, 282–3, 316; reception and consequences, 39–40, 43, 136, 252, 283–7; recommendations, 39–40, 44, 73, 81, 113, 126, 134–6, 251–2, 254, 284–5, 308–9, 328 East Florida, 27, 140, 162 Eastern Townships, 172, 248 Edward VII, 244 Egremont, 2nd Earl of (Charles Wyndham), 109, 111, 183, 185, 188 elections, Canada: 1792, 244; 1848, 137, 293 electoral regime: elected assembly as political force, 131; established by Constitutional Act, 65–6, 92, 93, 96, 150, 172, 173; influence of clergy, 164

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Elgin, 8th Earl of (James Bruce): and bill to recompense losses of rebellions, 45–6; and Montreal rioters, 137; and responsible government, 42, 138–9, 289– 90, 293–4, 295 Ellenborough, 1st Earl of (Edward Law), 75, 135 Ellice, Alexander, 246 emigration: back to France after Conquest, 79, 93, 193–4; threat of, as key to Quebec Act, 217 England. See Britain English Canadians: and Act of Union, 302–3, 307–8, 311, 331–2; after Conquest, 182; in Lower Canada, 34–5; majority of, before emancipation of Canada, 302; origins, 98; population at time of Constitutional Act, 93; population mid-1800s, 133 English–French relations. See French–English relations Ewart, J.S., 8 executive councils: connection with legislative councils, 168; French– English make-up, 244; powers, 97, 99; under Constitutional Act, 92–3, 138, 167–9, 249, 300; under Proclamation, 30, 187–8, 195, 196 Falkland, 10th Viscount (Lucius Cary), 289–90, 294 Family Compact, 133, 153, 285, 289, 295, 300, 315 Le Fantasque (newspaper), 308 finances, revenues and budgets: under Act of Union, 40, 75,

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311; under Constitutional Act, 130–2, 175–6, 249–50; under Quebec Act, 31, 272; under Quebec Revenue Act, 226, 238. See also taxation Finlay, Hugh, 119 First Nations peoples: fur trade, 227–8; Jesuit missionaries to, 233; murdered at Detroit, 227; Pontiac’s Rebellion (1763), 195, 217; population late 1700s, 93; and Proclamation, 27–8, 183, 184–5; and Quebec Act, 115, 145, 217, 218; trade with, 27–8, 140, 185–6; wars with, 69 Floridas, 27, 109, 140, 162 forts and posts: at time of Treaty of Paris, 26; under Proclamation, 141 Fox, Charles James: Constitutional Act debates, 124, 151, 241, 242, 275, 277–8; and division of Canadas, 35; Quebec Act debates, 60, 114, 235; skilled parliamentarian, 54, 55; view of parliamentary regime, 123–4, 126, 127 France: alliance with American colonies, 149, 199, 212, 213– 14; bankruptcy, 192; as Britain’s long-time foe, 181–2, 213; Canadians return to, after Conquest, 79, 93, 193–4; loss of North American possessions, 104, 141; propaganda before Conquest, 191; and Rebellions of 1837 and 1838, 74; Revolution, 124, 126, 149, 214– 15, 241, 243; rights after

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Conquest, 184; source of Canadian immigrants, 77–8; threat from, as key to Quebec Act, 212–15, 216, 217, 218–19, 221 Frégault, Guy, 7, 303 French and Indian War. See Seven Years’ War French Canada under British rule. See also British rule; Canada East; Lower Canada; Quebec; 1760–1764 (provisional rule), 106, 191–5; 1764–1791 (rule as Crown colony), 106–7, 110–21, 195–204; 1791–1848 (parliamentary regime), 65–6, 107, 121–37; 1848–1867 (autonomy to Confederation), 107–8, 137– 9, 332–3; 1867–1931 (Confederation to Statute of Westminster), 107–8 French Canadians: after Conquest, 78–9, 104, 152, 181–2, 191–2; and American Revolution, 72–3, 199, 214; before Conquest, 50–1; and division of Canadas, 34, 122; emigration after Conquest, 193–4; historians of, 12–13; on the Illinois and at Detroit, 227; Loyalists’ view, 97; passion for freedom, 12, 104; persecution of, 80–1; petition to King George, 82–5; petition to Lord Dorchester, 88–9; petition to Murray, 224–5; population 1700s, 93, 127; population mid1800s, 76–7, 101n5, 127, 133; under Act of Union, 75, 251–2, 303, 308, 311, 313, 331–2; under Proclamation, 25–6,

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29–30, 50, 55, 148; under Quebec Act, 30–2, 56–8, 60–1; under Treaty of Paris, 47–8, 192–5. See also nationalism, French Canadian The French Canadians, 1760–1945 (Wade), 16 French–English relations: and Act of Union, 34–5, 66–7, 75–6, 122, 150–1, 156; after Conquest, 49–50, 95; after Constitutional Act, 97–8, 243–5, 302; after Proclamation, 95; after Quebec Act, 62, 148–9; after Rebellions, 290; and arrival of Loyalists, 97, 98–9; and exclusion of Catholics from public service, 86; indifference and mistrust, 10; Lower’s view, 10; media influences, 38, 99–100; sources of conflict, 127–30 fur trade: British merchants’ monopoly, 257; decline of, 248; and Proclamation, 27–8; and Quebec Act, 227–8 Gage, Thomas: governs Montreal district, 79–80, 191; and potential American invasion, 211–12, 215; proposes civil constitution for Illinois, 227; reports to Board of Trade, 183 Gagnon, Serge, 7 Galt, Alexander, 3 Garon, André, 6 Gaspé District, 33 “Generous Nation!” epithet, 207–8 Genet, Edmond-Charles, 214

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George I, 260 George II, 260 George III: admires English constitution, 158; and American colonies, 206–7; assents to Quebec Act, 31; and Constitutional Act, 89, 91, 270–1; death, 250–1; French Canadian loyalty to, 192–3, 194–5, 250; petitioned by French Canadians, 82–5; and Proclamation, 26, 48, 49, 185; and Quebec Act, 206, 231, 270– 1; reign begins, 261; sovereignty of, 158–9 Georgia: and Revolutionary War, 87 Gibbon, Edward, 54–5 Glenelg, 1st Baron (Charles Grant), 129, 134, 165 Glorious Revolution of 1688, 260–1 Goderich, 1st Viscount (F.J. Robinson), 166 Gosford, 2nd Earl of (Archibald Acheson), 75, 133, 135 Gourlay, Robert, 285 governance: at Conquest, 95; relationship of Crown and parliament, 160–2; under Act of Union, 40–1, 310, 331–2; under Constitutional Act, 63–5, 98–9, 125–7, 130–4, 163–78, 240–1, 300–1; under French rule, 50–1; under Proclamation, 49, 50, 51, 95, 141, 162–3; under Quebec Act, 31–2, 56, 59–60, 85–6, 119–20, 141–2, 145–6, 259–60 Goyette, Julien, 7 Grant, William, 245–6, 247

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Great Britain. See Britain Grenada, 27, 109, 162 Grenville, William (Lord Grenville): drafts and argues for Constitutional Act, 16, 66–7, 89, 122, 151, 240–2, 269–74; embodied ideology of aristocratic society, 279; view of Lower Canadians, 11, 34, 150, 241 Grey, Henry (3rd Earl Grey), 289– 90, 293, 294, 320 Guadeloupe, 140, 191 Habakkuk, H. J., 261 Hakluyt, Richard, 283 Haldimand, Frederick: concerns about France, 215, 218; governor of Quebec, 152, 199, 200, 209; governor of Three Rivers, 80, 191; and Loyalist settlement, 264–5; reserves Eastern Townships for colonization, 248 Halévy, Daniel, 46 Hamelin, Jean, 6 Harper, Stephen, 5 Harrison, Samuel, 43 Harvey, John, 294 Heritage Canada, 5 Hesse District, 33 Hey, William, 117, 144, 222, 228, 231, 239 Hillsborough, Earl of (Wills Hill): concerns about France’s intentions, 215; as head of Board of Trade, 22, 189, 212–13; plan of 1769, 229; and policy of western reserve, 226–7; on property rights, 189–90; skilled parliamentarian, 54

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Hincks, Francis, 43, 317–18, 321– 2, 326, 327–8 Histoire du Canada depuis sa découverte jusqu’à nos jours (Garneau), 11–12 history (discipline): changes in late 1900s, 9; of FrenchCanadians, 12; French texts vs. English texts, 5–6, 7, 8, 13, 14; teaching of, 8, 11 Hope, Henry, 119–20, 200 Hopkins, J.C., 8 houses of assembly: none under Quebec Act, 229–30; under Constitutional Act, 35, 150, 172–3; under Proclamation, 84, 142, 187 Howe, Joseph, 289, 294, 295, 296–7 Hudson’s Bay Company: jurisdiction, 27, 28, 60 Hume, Joseph, 74 Illinois-Ohio-Mississippi triangle, 26, 30, 111, 115, 145, 221, 226–8, 237 immigrants: from Britain, 79; to Eastern Townships, 248; encouraged by Proclamation, 186, 195, 209; from New England, 77–8; Quebec Act as breach of faith with, 148–9 Indians. See First Nations peoples industry: mid-1800s, 76 Innis, Harold, 9, 19n10 intendant: role, 50 Ireland: annexation, 104; comparisons with French Canada, 206, 220, 292, 296; treatment by Britain, 206–7 Irving, Paulus Æmilius, 230

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Jesuit order, 25, 232–3, 234 Johnstone, J.W., 295 Jordan, Jacob, 245, 247 judges and justices: at Detroit, 227; under Constitutional Act, 168–9, 173; under Proclamation, 49, 142, 187, 196, 224; under Quebec Act, 56, 203 King. See Crown Kingston, Ontario, 314 Knox, William, 144–5, 206–7, 211–12, 223, 264, 273 Labrador, 27, 60, 80, 115, 117, 145, 184, 237 Lafayette, Marquis de (Gilbert du Motier), 149 LaFontaine-Baldwin government, 44–5, 290–1, 293–4, 295–6, 302 LaFontaine, Louis-Hippolyte: accepts majoritarian British Canada, 327–8, 331–2; advocates political reform, 136, 138, 139, 311–12; co-leader of first responsible government, 42, 43, 137, 293; key player in constitutional history, 289–90, 295–6, 311–12, 321–2, 326; resigns, 292; rivalry with Poulett Thomson, 330; statesmanship, 107, 251, 312 Lamarre, Jean, 7 Lamonde, Yvan, 6 language: constitutionally protected, 73; and Loyalists, 97; official bilingualism, 109, 139, 246; restriction on French repealed, 44; too deeply rooted

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for extraction, 330; under Act of Union, 41, 44, 75, 135; under Constitutional Act, 245– 6; under Proclamation, 29; under Quebec Act, 239 Lartigue, Jean-Jacques, 326 Lee, John, 245 legislation: based on LaFontaine bill, 43; Crown’s supremacy, 162, 166, 170–1; imperial and colonial powers, 164–6; under Constitutional Act, 131, 154–5, 169–71; under Proclamation, 28, 141, 187–8; under Quebec Act, 142 legislative councils: connection with executive councils, 168; French–English make-up, 133, 244; under Act of Union, 40, 44; under Constitutional Act, 58, 64–5, 92, 96–9, 130–1, 168, 169–71, 240–1, 300–1; under Quebec Act, 31, 35–6, 59, 229– 30, 259–60 Lévesque, René, 4 Liverpool, 2nd Earl of (Robert Jenkinson), 129 Lotbinière, Michel Chartier de, 228–9, 245–6 Louis XV, 192, 194, 250–1 Lower Canada: civil service, 133– 4; colonial freedoms, 125–7; counties and electoral districts, 36; Crown lands, 166; debts on union, 40, 135, 326; electoral districts, 36, 93, 150, 172; established, 34, 35–6, 66, 89–91, 122, 150, 203, 241; executive council, 167–8; French–English relations, 38–9, 40, 123, 152–3;

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governance, 36, 37–8, 65–6, 92, 93, 125–7, 130–1, 133, 300–1; house of assembly, 150, 165–6, 172, 173, 174; legislative council, 133, 169; Ninety-Two Resolutions, 300; population, 33, 66, 76, 93, 127, 133, 257; and Rebellions, 45, 177, 307; response to Act of Union, 307– 8, 311, 313, 319; reunited with Upper Canada, 40–1, 108; seeks parliamentary freedom, 128–9; seigniorial system, 43–4, 241; special council after Rebellions, 74, 134, 177–8, 307, 324–5. See also Canada East; Quebec (colonial province); Quebec (province) Loyalists: and division of Canadas, 16, 34–5, 63, 121, 264, 265–9; in first government of Lower Canada, 37; land grants and governance, 33–4; numbers and settlement, 121, 264–5; relations with French Canadians, 97, 98–9, 121, 243; strengthen British merchants’ position, 201, 202; in Upper Canada, 238, 241 Luneburg District, 33 Lymburner, Adam, 34–5, 89, 151, 275 Mabane, Adam, 120, 197, 230 Macaulay, Thomas Babington (1st Baron Macaulay), 242 Macdonald, John A., 3, 42, 43 Macdonell, John, 37 Mackenzie, William Lyon, 295, 314 MacNab, Allan, 43

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index 355

Macnider, Mathew, 246 Magdalene Islands, 60 Mansfield, 1st Earl (William Murray), 54, 109 Marriott, James, 222, 228 Martin, Chester, 9, 205–7, 210–12, 215, 219 Masères, Francis: and Quebec Act, 84, 85, 144, 213, 229; reports to England, 143, 222, 229, 232; supports mixed system of French and English law, 29, 112, 223, 239 Massachusetts: and Revolutionary War, 86, 114 Mathieu, Jacques, 6 McArthur, Duncan: biography, 342; on Quebec Act and nationalism, 116; on Quebec Act and Revolutionary War, 118 McArthur, Duncan, 8, 9, 13 McCarthy, D’Alton, 208 McGee, D’Arcy, 3 McGill, James, 245, 247, 325 McInnis, Edgar, 116–17, 118, 206, 210, 219 McRoberts, Kenneth, 9 Mecklenburg District, 33 Meech Lake Agreement (1987), 5 Meisel, John, 6 Melbourne, 2nd Viscount (William Lamb): abandons Durham, 283; appoints Durham, 281; character, 281, 283; dismisses responsible government for colonies, 309; on Lower Canada’s lack of authority, 134, 310; weak government, 286, 308 merchants, British: after Constitutional Act, 203, 223,

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241–2, 247, 248, 301; after Proclamation, 95, 196; after Quebec Act, 96, 198, 201, 239, 258; influence on Act of Union, 75, 307–8; influence on Constitutional Act, 88, 96, 120– 1, 201, 256, 257–60; influence on Quebec Act, 229–30, 257; land speculation, 248; Loyalists, 97, 121; mindset and culture, 128 merchants, French: after Conquest, 26; emigration to France, 79, 96 The Mercury newspaper, 99–100 Merritt, William Hamilton, 295 Metcalfe, Charles (Lord), 42, 138, 289–90, 291–3, 295 Mignault, P-B., 115 Milnes, Robert, 164 Moffatt, George, 325 Molson, John, Jr., 325 Montesquieu, 87, 240 Montreal: 1849 riots, 137; capitulation of, 25, 47, 78, 191; celebrations for Union, 306, 307; economic centre, 141; as headquarters for British rule, 25, 79; as Lower Canada electoral district, 36, 173, 260; reaction to Quebec Act, 32; as seat of government, 46 Montreal Gazette (newspaper), 308 Morgann, Maurice, 222 Morin, Augustin-Norbert, 138–9, 300, 312, 331 Morin, Jacques-Yvan, 6 Morton, Desmond, 218 Mowat, Oliver, 3 Murray, George, 131

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35 6 index

Murray, James: appointed governor of Quebec, 28, 48, 49, 79, 80, 163, 183, 186–7, 195; character and leadership, 13–14, 25, 29, 30, 81, 142, 189, 191, 196, 217, 220; on civil law, 224; commission and instructions, 109, 110–11, 142, 183, 186–9, 195, 208; council of Protestants, 49; foresees threats to Canada, 210–11, 217; French Canadian opinion of, 51–2, 225 Napoleonic wars: and French Canadians, 149 Nassau District, 33 nationalism, French Canadian: as bulwark against America, 72; encouraged by restrictions against, 86; importance of preserving, 69, 77–8, 132; maintaining while loyal to Britain, 52–3, 67, 71–2, 104–5; and memory of New France and Conquest, 236–7; recent years, 303–5; strength of, 94–5, 114, 117; threatened by governors, 70; uncertain threats against, 71; under Act of Union, 75, 251–2, 303, 313; under Constitutional Act, 89–91, 152– 3, 156, 241–3, 246; under Quebec Act, 56–8, 67, 116, 148–9, 152, 156, 205, 237–9 native peoples. See First Nations peoples Neilson, John, 311 New Brunswick: established as province, 264; governance, 121, 123; jurisdiction, 27; Loyalists in, 264, 272

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New France. See Quebec (colonial province) Newark (Niagara-on-the-Lake), Upper Canada, 36–7 Newfoundland: France’s fishing rights, 184; jurisdiction, 27, 30, 184 newspapers: Le Canadien, 38, 99, 300, 308, 312, 340; Le Fantasque, 308; The Mercury, 99–100; Montreal Gazette, 308; Quebec Gazette, 311 Niagara-on-the-Lake, Ontario, 36–7 Nielson, John, 326 Ninety-Two Resolutions, 300 North, Frederick (Lord North): and American colonies, 207; and division of Canadas, 264; Quebec Act debates, 32, 58–9, 114, 144, 147, 229, 232, 258–9; skilled parliamentarian, 54, 55; stabilizes administration, 222 Nova Scotia: governance, 121, 290, 294–5, 297; judicial system, 142; jurisdiction, 27, 184; Loyalists in, 264, 272; as precedent for Murray, 188 O’Connell, Daniel, 220 O’Connell, John, 74 Ohio–Illinois–Mississippi triangle, 26, 30, 111, 115, 145, 221, 226–8, 237 The Old Province of Quebec (Burt), 116 Oliver, Michael, 9 Osgoode, William, 37 Ottawa: chosen as capital, 46 Ouellet, Fernand, 255 Owram, Doug, 8

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index 357

Paget, Charles, 282 Panet, Jean-Antoine, 38, 128–9, 244–5, 247 Panet, Pierre-Louis, 245–6 Papineau, Joseph (father), 69, 245, 250 Papineau, Louis-Joseph (son): appointed to executive council, 249; background and talents, 250; and change needed for responsible government, 295; denounces union, 321; on English appointments to assembly, 134; eulogizes George III, 250–1; and eventual union of Canadas, 74; on parliamentary rights in Lower Canada, 129; and Rebellions, 153, 250, 296, 309, 311; on revenue rights, 131 Parent, Étienne, 116, 312, 321, 322–4, 326, 328–31 parliamentary regime in Britain: aristocratic oligarchy, 262–3; as model for Canadian parliaments, 256; relationship to Crown, 160–1; relationship with colonial parliament, 164–6, 174; strength (late 1700s), 53–5 parliamentary regime in Canada: agitation against, 107, 123; British views on need for, 123– 5; conflicting political forces, 130–4; illusory colonial freedoms, 125–7, 289; instituted by Constitutional Act, 65–6, 107, 123; modelled on British regime, 256; relationship with imperial parliament, 164–6, 174; sources of conflict, 127–9

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parliamentary sessions: 1841– 1867, 41, 42; 1841 (first), 41, 66; 1842, 44 party government: failure in Upper and Lower Canada, 155–6 Penn, William, 283 Pennsylvania: jurisdiction, 27, 60 Perrault (Grand Vicar), 224 Philadelphia: and Revolutionary War, 87 Pitt, William, the Elder (Lord Chatham): as colonial administrator, 183; debates Constitutional Act, 65; debates Quebec Act, 31; skilled parliamentarian, 53–4 Pitt, William, the Younger: concerns about colonial funding, 271; Constitutional Act debates, 275–8; and division of Canadas, 34, 35, 89–91, 122, 150–1, 241–2, 256, 257, 260, 265; embodied ideology of aristocratic society, 279; and French Revolution, 124; replaces Board of Trade, 263; and union with Ireland, 207; view of parliamentary regime, 124, 126 Plessis, Joseph-Octave, 207–8, 249 Plumb, J.H., 260, 262 Pontbriand, Henri-Marie Dubreil de, 192, 197 Pontiac’s uprising (1764), 195 populations: 1700s, 66, 76, 93–4, 127, 257; 1800s, 72, 76–7, 127; at Conquest, 104 Portland, 3rd Duke of (William Cavendish-Bentinck), 129 postal service: Canadian control over, 44, 138

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Poulett Thomson, Charles Edward (Baron Sydenham): and Act of Union, 326, 329–30; as first governor-general of united province, 41, 43, 307–8, 310, 315, 316–18, 321; informationgathering for constitutional changes, 253–4; policy of assimilation, 290; and responsible government, 138; and special council after Rebellions, 40, 134–5, 307, 324–5 Prévost, George, 133, 249 Prince Edward Island (St. John’s Island), 27, 80 Proclamation of 1763. See Royal Proclamation of 1763 property rights: and Durham Report, 285–6; under Constitutional Act, 92; under Proclamation, 189–90, 195–6; under Quebec Act, 228, 238 Protestants: under Constitutional Act, 36, 92; under Proclamation, 29–30, 49, 82, 187, 188, 208–9; under Quebec Act, 30, 32, 96, 233, 238. See also Church of England public revenues. See finances, revenues and budgets public service. See civil service Quebec Act 1774: amended, not replaced, by Constitutional Act, 63–4, 203, 241; as breach of faith with immigrants, 148–9; cause of French–English problems, 148–9, 153, 198–9, 202– 3; enacted, 30, 60–1, 115, 145, 198, 226; origins, 82–5, 117–18,

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142–4, 205–20, 221–3; as policy of anglicization, 232–3, 235; as policy of increasing French autonomy, 106, 115–17, 152; preamble, 226; provisions, 30–1, 55–60, 72, 85, 95–6, 141– 2, 145–7, 226–8, 237–9; reactions to, American, 87, 115, 148–9, 226–7, 237, 239–40; reactions to, Canadian, 31–2, 119–20, 148–9, 199–204, 237– 9; as repudiation of Proclamation, 209–10; tabled and debated, 55, 58–9, 60, 114, 144–5, 226, 258–9; timing of, 118 Quebec (city): economic centre, 141; as headquarters for British rule, 25, 79; as legislative meeting place for Canadas, 46; as Lower Canada electoral district, 36, 173, 260; siege during Seven Years’ War, 78 Quebec (colonial province): boundaries under Proclamation, 27, 48, 80, 110, 111, 141, 183–6; boundaries under Quebec Act, 30, 60, 115, 145, 221, 226–7, 237–8; governance under Proclamation, 27–9, 140, 162–3; governance under Quebec Act, 31–2, 115; immigration after Conquest, 79; legislative assembly, 11, 28, 62; seigneurial system, 112, 120; under Proclamation, 84. See also Canada East; French Canada; Lower Canada; Quebec (province) Quebec Gazette (newspaper), 311

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index 359

Quebec (province): Confederation, 108; rejection of amendment mechanisms, 4–5; separatist movement, 205, 333. See also Canada East; French Canada; Lower Canada; Quebec (colonial province) Quebec Revenue Act, 176, 226, 238, 249–50 Quesnel, Jules-Maurice, 325 Rebellions of 1837 and 1838: causes, 38, 107, 176–7, 243, 250; losses to Canadian inhabitants, 45, 294, 295; not enjoined by all French Canadians, 149, 153; political prisoners, 283, 313; raids in Upper Canada, 314–15; results, 39, 74–5, 280, 307, 320; small and soon quashed, 309; world interest in, 74 Récher (parish priest), 224 Récollet order, 25, 233 Reflections on the Revolution of France (Burke), 124 religion: and American colonies, 240; clergy reserves, 30, 43, 165, 169, 285, 318; Crown’s supremacy, 162, 163–4; and Durham Report, 286; under Constitutional Act, 36, 64, 92; under Proclamation, 25, 29, 49, 50, 52, 110–11, 112–13; under Quebec Act, 30, 31, 55–6, 61, 116, 141–2, 146–7, 162, 231, 232–3, 238; under Treaty of Paris, 47–8 Report on the Affairs of British North America. See Durham Report

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representative government: Canadian opinion divided, 89; debated in British parliament, 88; and French–English relations, 243–5; in other British colonies, 201; and Protestant population, 96; under Constitutional Act, 96–7, 98, 242–3, 249–50 responsible government: 1848 introduction, 9, 107, 137–8, 293–4, 302; advocated long before introduction, 131–2, 138–9, 253, 300; after Act of Union, 41–2, 43–6, 316–18; as distinct from self-government, 155–6; and Durham Report, 39–40, 283–4, 285, 309–10, 315–16; and English-Canadian majority, 302–3; key figures in, 289–97; nature of change needed, 295; self-government as, 131; under Lord Elgin, 42 revenues. See finances, revenues and budgets Richardson, John, 245–7 Richmond, 3rd Duke of (Charles Lennox), 54 Richmond, 4th Duke of (Charles Lennox), 132 Rocheblave, Philippe-François de Rastel de, 245 Roman Catholics: and 1844 population, 76; after Conquest, 193, 194; effects of Quebec Act, 205; in Ireland, 207; and members of Quebec assembly, 28–9; in New France, 163; as primary strength in formation of Canada, 113; and Rebellions,

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149, 153; under Constitutional Act, 36, 92, 163; under Proclamation, 25–6, 29, 47–8, 49, 50, 82, 110–11, 112–13, 164, 188, 208–9, 224; under Quebec Act, 30, 32, 55–6, 116, 145, 146–7, 149, 230–1, 233–4, 238; under Treaty of Paris, 47–8 Roubaud (Pere Rauban), 113 Royal Proclamation of 1763: difficulties of developing, 181–3; enacted, 183, 195, 263; failure of, 195–7; governance under, 49, 50, 51, 95, 141, 162–3; issuance and effective date, 26–7, 50; North’s comments, 58–9; as policy of assimilation, 106, 110, 111–14, 208; provisions, 27–9, 48, 80, 183–6, 189–90; revoked by Quebec Act, 115, 145, 238; sources, 109 Rudin, Ronald, 7 Rupert’s Land: boundaries, 27 Russell, John (Lord): 1839 despatches, 41; becomes Colonial Secretary, 310; brings Act of Union before parliament, 40, 135, 320–1; embodied ideology of world market conquest, 279; praises Durham’s recommendations, 134; and responsible government, 252–4, 296, 315–17; on trade policy with adult colonies, 137–8 Ryerson, Egerton, 293, 295 Ryerson, Stanley B., 212 Ryland, Herman Witsius, 39, 301 St. John’s Island (Prince Edward Island), 27, 80

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St. Pierre and Miquelon, 141, 184 Saint Vincent Island, 109 Sandwell, B.K., 206 Savile, George, 54 Scotland: annexation, 104; seats in British parliament, 262 Scott, F.R., 113 self-government. See responsible government settlements: as focus of Constitutional Act, 271–2; French and English, at time of Treaty of Paris, 26; initial focus of Proclamation, 140, 186, 188– 9, 195–6 Seven Years’ War: British acquisitions, 104, 141; conclusion, 25, 78–9, 141 Sewell, Jonathan, 39, 249 Shelburne, 2nd Earl (William Petty), 54, 189, 211 Sherbrooke, John, 249 Sherwood, Henry, 42 Si je me souviens bien (Meisel), 6 Signay, Joseph, 326 Simcoe, John Graves: on constitutional rights and freedoms, 129; ideal turns to stagnation, 154; as lieutenant-governor of Upper Canada, 36–7, 150, 172; on untractable assembly of Upper Canada, 130 Skelton, O.D., 208 Smith, Goldwin, 8 Smith, William, 202–3, 241, 266–7 Sorel, Albert, 124 Sorel (place), Quebec, 36 Spain: alliance with France, 213; territories ceded, 27 Spence, Robert, 44

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index 361

Stanley, Frederick (Lord Stanley), 289 Statute of Westminster (1931), 4, 107 Stuart, James, 325, 327 Sulpician order, 25 Sydenham, 1st Baron. See Poulett Thomson, Charles Edward Taschereau, Gabriel-Elzéar, 245 Taxation: and American colonies, 86, 132, 221; under Constitutional Act, 91, 125, 130, 132, 174–5; under Proclamation, 49, 59, 81, 142; under Quebec Act, 145, 238, 272. See also finances, revenues and budgets Test Act/Oath: and Constitutional Act discussions, 96; effectively excluded Catholics from office, 49, 62, 196; removed by Quebec Act, 56, 61, 62, 145, 230; wording, 48 Thirteen Colonies. See American colonies Thomson, Charles Edward. See Poulett Thomson, Charles Edward Thorn, Adam, 282 Three Rivers: as headquarters for British rule, 25, 79, 80; as Lower Canada electoral district, 36, 173 Thurlow, Edward: and Quebec Act, 58, 222, 239, 270; report prior to Constitutional Act, 223, 270; skilled parliamentarian, 54, 55, 82 Tilby, A. Wyatt, 206

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Tilley, Leonard, 3, 4 Tobago, 109 Toronto: celebrations for Union, 306, 313–14; as legislative meeting place for Canadas, 46 Townshend, Thomas (Lord Sydney), 144, 267–8, 269 trade: after Conquest, 194–5; between Britain and United States, 271; Canada as supplier for West Indies, 263–4; colonial autonomy over, 44, 76, 138, 277–8; with First Nations people, 27–8, 140, 185–6, 227–8; under Constitutional Act, 248; under Proclamation, 81, 141. See also Board of Trade (and Plantations), Britain treaties with Indians: under Proclamation, 28 Treaty of Paris (1763): and British acquisitions, 104, 141; as first statement of policy, 106; French Canadian reactions to, 192–3; provisions for French Canadians, 26, 47–8; results, 79; and Roman Catholicism, 29; as start of British rule, 139n2, 158 Tremblay Commission, 304 Trois-Rivières. See Three Rivers Trudeau, Pierre Elliott, 4, 9 Tupper, Charles, 3 Turreau, Louis-Marie, 99 Turton, Thomas, 282 United Empire Loyalists. See Loyalists United States: and Canada’s national identity, 9; increasing power, 73, 77; Papineau’s

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dream of association with, 321; population mid-1800s, 329; raids on Canada, 314–15; and Rebellions of 1837 and 1838, 74; trade with Britain, 271; western trading posts surrendered to, 248. See also American colonies; American Revolutionary War Upper Canada: clergy reserves, 165; counties and electoral districts, 37; debts on union, 40, 75, 135, 311, 315, 326; electoral districts, 150, 172; established, 34, 35–6, 66, 89–91, 122, 150, 203, 241; executive council, 167–8; failure of constitution, 153–4; Family Compact, 133, 153, 285, 289, 295, 300, 315; governance, 36–7, 65, 92, 93, 125–7, 131; house of assembly, 150, 172, 173; legislative council, 133, 169–70; losses during rebellions, 45, 294; population, 66, 76, 93; response to Act of Union, 313–15, 318–19; reunited with Lower Canada, 40–1; seeks parliamentary freedom, 129 Vaudreuil de Cavagnial, Pierre de Rigaud de, 25, 47 Vergennes, comte de (Charles Gravier), 149

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Victoria (Queen), 46, 306 Viger, Denis-Benjamin, 136, 250, 311 Virginia: jurisdiction, 27, 60 voting: and French Canadians, 70; and religion, 28; under Act of Union, 75; in Upper and Lower Canada, 35, 65 Wakefield, Gibbon, 282, 283, 285, 316 Wales: seats in British parliament, 262 Wallot, Jean-Pierre, 301 War of 1812, 314–15 Wedderburn, Alexander: on limited rights of conquerer, 235; and Quebec Act, 58, 114, 222, 228, 239, 258–9; skilled parliamentarian, 54, 55; and union with Ireland, 207 Wellington, 1st Duke of (Arthur Wellesley), 75 West Florida, 27, 140, 162 West Indies, 72, 263, 265 William Henry borough (Sorel), 36, 173 Wittke, Carl, 205, 212, 218 Woehrling, José, 6 Wrong, George, 8 Yankees, 154 Yorke, Charles, 117 Young, John, 245

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